Bivas
John Doe/Ashok Kumar Suit | How to file suit against anonymous/unknown defendant
Bivas Chatterjee 10 Sep 2019

John Doe/Ashok Kumar Suit | How to file suit against anonymous/unknown defendant

In this article I discuss about suit against an unknown defendant which is termed as John Doe suit worldwide or Ashok Kumar Suit in India. This article expresses the format or procedure of filing a suit against anonymous/unknown defendant. This article will also divulge the latest cases of John suit or Ashok Kumar suit in India. The most important point which I have discussed in this article is related to situation when you only have virtual address of a person and not real physical address and you have to file suit for your redressal and in that case the John Doe is the best remedies. Like the other parts of the world, John Doe suit is also popular in India. In this article I have tried to find out the provisions of Civil Procedure code wherein we have a base-point in favour of filing any suit and getting an order or reliefs in the similar situations where we hardly find physical address of defendant. This article has discussed the following:

REMEDY WHERE DEFENDANT IS UNKNOWN.

A fictitious name used for centuries in the law when a specific person is not known by name. (https://legal-dictionary.thefreedictionary.com/John+Doe+or+Jane+Doe)

A fictitious name used in legal proceedings for a male party whose true name is not known.

(https://www.dictionary.com/browse/john-doe)

fictitious defendant is a person that cannot be identified by the plaintiff before a lawsuit is commenced. Commonly this person is identified as "John Doe" or "Jane Doe".

In the case of John Smith vs. Jones Memorial Hospital and Dr. John Doe.

Jones Memorial Hospital is a hospital in the city of Anytown, USA.

Dr. John Doe is a doctor employed by Jones Memorial, and at all relevant times was the plaintiff's treating physician. The identity of the treating physician is unknown to the plaintiff despite the plaintiff's best efforts to identify the doctor.

PURPOSE OF JOHN DOE:

One of the important purposes is to identify the unknown or anonymous fraudsters in the virtual world. (unidentified person is called John Doe or Jane Doe) John Doe custom was used in old English common law. It is a placeholder or identity of anonymous, unknown, unidentified party in the suit. 

If you do not know or identify the true identity of the wrong-doer or who defrauded you,  you can file civil suit using John Doe in place of defendant name but in that case you have to mention the email-ids and or any detail of your online transaction to establish that you have a lawful cause of action for your suit.

You can also make the intermediaries as party or summon them who will provide the details of the fraudsters who have defrauded you by using the intermediaries’ service. 

Worldwide this type of suit is filed for getting relief in intellectual property infringement cases to get the identity of the anonymous defenders and for getting relief. 

Sample cause title of a John Doe suit:

IN THE COURT OF LEARNED ____________________________

____  No.           of 2019

IN THE MATTER OF :

                                             XYZ                           ...  Plaintiff. 

-Versus-

1) Intermediaries  

 

                         2) JOHN DOE(S)/JANE DOE(S)

               Having ________ page link 

https://www.........

    or email id ______________

                                                                          ……..Defendants

As per Billy Joel v. Various John Does:

"Were the Injunction to be denied, Plaintiffs would be without any legal means to prevent what is clearly a blatant infringement of their valid property rights. While the proposed remedy is novel, that in itself should not weigh against its adoption by this Court. A court of equity is free to fashion whatever remedies will adequately protect the rights for the parties before it."


John Doe suit in India:

In India the john Doe is termed as Ashok Kumar also.

Hon’ble madras high court in two cases filed by Red Chillies Entertainment and Prakash Jha Productions, to protect their films namely Jab Harry Met Sejal and Lipstick Under My Burkha…. Ordered interim injunction restraining Ashok Kumar(defendant no 43 to 50 in the suit) from alleged infringement activities. Here 8 unknown parties in the suit are termed as Ashok Kumar. 

Here the john/Ashok Kumar order was actually against every entity who is either recording, uploading, Downloading, using torrent etc….of the copyrighted product.

John Doe suit is more popular in India in preventing infringement of intellectual property rights….


Some of the famous John Doe suits in India:

  • ESPN Software India Pvt. Ltd. v. Tudu Enterprise and Ors.
  • Satellite Singapore PTE Ltd. v. Star Cable Network & Ors.
  • UTV Software Communications Limitedv. Home Cable Network Ltd. and Ors.
  • Red Chillies Entertainments Private Limited v. Hathway Cable & Datacom Limited & ors
  • Ardath Tobacco Company Ltd. v. Mr. Munna Bhai and Or.
  • Viacom 18 Media Private Limited & Ors Vs. Union Of India & Ors


M/s Sandisk Corporation vs. John Doe:

  • "the unnamed and undisclosed persons arrayed as 'John Does' are restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in counterfeit products, which are identical to the products bearing the plaintiff's Trade mark SanDisk and logo marks and the 'Red Frame' logo, with identical product packaging, product getup colour scheme, layout, overall look and feel as that being used by the plaintiff."

Abis Rizvi Films vs. Hathway Cable and Datacom Ltd. & Ors.:

  • 4 Having regard to the material now placed by the Plaintiff before the Court, it is clear that the Plaintiff's apprehension, on the basis of which the adinterim reliefs are now sought in the Notice of Motion, is well founded. There is a clear case made out for grant of ad-interim reliefs. 
  • 5 Our Court, like several other High Courts, has passed similar orders based on apprehensions of a breach of copyright. Several of such orders have been noted in an order passed by this Court on 14 October 2014 in the case of Red Chillies Entertainment Pvt.Ltd. vs. Hathway Cable & Datacom Ltd1 . 


There may be misuse of John Doe suit or this type of suit. Following observations is pertinent in this respect: 

The Indian Performing Right ... vs Mr. Badal Dhar Chowdhry & Ors:

“7. The court ought not issue an injunction which is vague or indefinite. Breach of injunction has serious consequences for the violator. However, before the Defendant can be so injuncted, the Defendant ought to be made aware of the precise act which he is prohibited from doing. A vague injunction can be an abuse of the process of the court and such a vague and general injunction of anticipatory nature can never be granted. Lord Upjohn in Redland Bricks Ltd. Vs. Moeris (1970) A.C. 652 observed that a defendant is entitled to know what he is required to do or to abstain from and this means not as a matter of law but as a matter of fact. The Division Bench of this court also, in Time Warner Entertainment Co. L.P. Vs. R.P.G. Netcom AIR 2007 Delhi 226 has held that a vague order of injunction which is uncertain in its application and likely to cause confusion should not be passed; it will be impossible for the courts to ensure implementation and compliance without the Defendant or the court knowing as to which works the injunction applies. Reliance was further placed on Columbia Picture Industries Vs. Robinson (1987) Ch. 38.

8. Though there is precedent for injuncting others than those impleaded in the suit and who may be found violating the rights, in the field of trade mark/ copy right and what has commonly come to be known as John Doe / Ashok Kumar orders, but in that case also the mark or the work with respect whereto injunction is issued is identified. In the present case, the Plaintiff is unable to identify the works in which it has rights and with respect whereto the Defendants are sought to be restrained.


Relevant provisions of C.P.C.:

RDER I - RULE 7 : When plaintiff in doubt from whom redress is to be sought— Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties. 

ORDER I – RULE 10(2): (2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added

ORDER VI ----RULE 14A:

[14A. Address for service of notice— (1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the party. 

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. 

(3) The address furnished in the statement made sub-rule (1) shall be called the "registered address" of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit of in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of two years after the final determination of the cause or matter. 

(4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided there at. 

ORDER VII RULE 1:

Particulars to be contained in plaint— The plaint shall contain the following particulars:— 

------------------------------------------------

-----------------------------------------------

(c) the name, description and place of residence of the defendant, so far as they can be ascertained; 

------------------------------------------------

SECTION 20 OF C.P.C.: Other suits to be instituted where defendants reside or cause of action arises.-

Other suits to be instituted where defendants reside or cause of action arises –

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

  1. the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or 
  2. any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution;

 or (c) the cause of action, wholly or in part, arises

ORDER XXX:

Rule : 1 

Suing of partners in name of firm— (1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. 

Rule: 10

Suit against person carrying on business in name other than his own— Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly. 

It is to be noted that nowhere in this case I have given any advice for any case and whatever I have discussed is only my opinion with which you may agree or not and you are also requested to refer various available references to this respect. 

For details please watch my YouTube video having url: https://www.youtube.com/watch?v=WRvCTVj23iI

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