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by Kumar Wethasinghe

Commercial High Court Judge of the Western Province L. K. Wimalachandra dismissed the first ever software piracy case when the paintiff's witness, more particularly the witness under cross examination failed to appear in court without even instructing their own counsel.

In this case Soft Systems (Pvt) Ltd. of Panapilly Nagoor, Kochchi-Kerala-India, initially obtained an ex-parte enjoining order against a local company, Visualtech Microsystems (Pvt) Ltd, Dehiwala, alleging that their source code version of the computer program "Harvest" designed for agri-business activity had been pirated by the defendants and an identical computer program "Ves-AGRI" had been unlawfully installed.

Among other matters the plaintiff alleged that Visualtech Microsystems (Pvt) Ltd. does not have the know-how, man-power or even the required skills to develop a fully-fledged ERP solution with parameters for complete supply of chain management in the plantation industry and further alleged that the system had been installed with the assistance of one of its ex-employees.

Visualtech Microsystems (Pvt) Ltd. submitted that the allegation of piracy was malicious and baseless. They said the plaintiff earlier unsuccessfully negotiated to appoint, the defendants as the sole agent for the Indian package "Harvest". The defendants maintained that there was no integrated software completely developed by their company. They submitted that the offer for sole agency was merely a ploy to acquire monopoly of operations in the lucrative business of providing software package to the plantation sector.

Besides the "Ves-AGRI" software program was unique being developed to be custom made to achieve a certain solution in the field of plantation management utilising technical, mathematical parameters and operational components.

The defendants further refuted the allegation that software had been pirated in connivance with an ex-employee of the Indian firm.

However, the alleged person who had been issued a letter of release by the plaintiff had joined the defendant company and was serving only in the capacity of a customer support executive.

Moreover the expert evidence submitted by the plaintiff, under cross examination revealed that the Indian IT experts had rushed into the conclusion that the two systems were identical without inspecting or studying the local company's software package. When the trial resumed the witness under cross examination was not present in court while their instructing Attorney informed court that they had no further instructions from the plaintiff.

Although the defendant moved court that in terms of Section 87 (1) of the Civil Procedure Code, the plaintiff's action be dismissed and a claim in re-convention be fixed for trial against the plaintiff. Court allowed the application to grant time for further submissions on behalf of the plaintiff.

Thereafter Desmond Fernando PC on behalf of the plaintiff submitted that where the Lawyer for the party declines to take part in the proceedings but is present in Court the party is deemed in Law to have taken part in the proceedings, since the Lawyer was present in Court.

However, the Court was of the view that the facts in the instant case were different. The instructing Attorney for the plaintiff submitted to Court that he had no instructions. Moreover, the case being a partly heard case the plaintiff's witnesses should have been present in Court, particularly the witness under cross examination who failed to appear in Court without giving any reasons to Court. Besides the Supreme Court on several occasions had held that the mere presence of the instructing Attorney was not considered appearance.

Also in the instant action the trial commenced and the evidence of the plaintiff witness had not been concluded and on the occasion in question the witness was under cross examination was not present in Court nor any reason given for his absence and the instructing Attorney submitted he had no further instructions. Accordingly the Court dismissed the petition.

Lasantha Hettiarachchi instructed by S.A.C. Ali Sabry appeared for the defendant company.

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