AO/467/2007 of PERCEPT PICTURE COMPANY PVT. LTD. Vs SHREE KARMA PRODUCTION PVT. LTD. on 28 December 2007

ORAL JUDGMENT

Rule. Learned counsel Mr.A.R. Majmudar waives service of notice of Rule on behalf of respondent No.1.

2. This Appeal from Order has been preferred against the order dated 24[th] December,2007 passed by learned In-charge District Judge, Vadodara below Exh-5 application in Regular Civil Suit No.44 of 2007, whereby without giving notice to defendants, ex-parte, ad-interim relief, has been granted in favour of the plaintiff, in terms of para 29(a) and 29(b) of injunction application-Exh-5 application, preferred in the Suit. These prayers which are granted by ex-parte order, read as under:

“29(a)pending hearing and final disposal of this suit, the Defendants by themselves, their directors, servants, agents and distributors/exhibitors be restrained by an order of this Hon'ble Court from infringing the Plaintiffs' copyright in the artistic work “Bal Hanuman” registering under No. A-57127/99, in any manner whatsoever and by reproducing the same or substantial part thereof in any material form or by incorporating the Plaintiffs' said artistic work or any substantial part thereof or any reproduction thereof in a cinematograph film or by communicating the Plaintiffs' artistic work or any substantial part thereof or a reproduction thereof to the public or by exhibiting,distributing,broadcasting, publishing, screening or communicating the cinematograph film titled “Hanuman Returns” or “Return of Hanuman” or in any other manner whatsoever; (b)pending hearing and disposal of this suit, the Defendants by themselves, their directors, servants, agents and distributors/exhibitors be restrained by an order of injunction of this Hon'ble Court from using the character “Bal Hanuman” shown in Annexure 'A'to the plaint or any other character visually similar thereto in cinematograph film or any advertisement of the said cinematograph film or from exhibiting,distributing,broadcasting, publishing or communicating the said cinematograph film so as to pass off or enable others to pass off the said cinematograph film or advertisement thereof as the cinematograph film having the Plaintiffs' character of “Bal Hanuman” or in any other manner whatsoever.”

Against grant of these prayers, original defendant No.1 has preferred this Appeal from Order.

3. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the case, the order dated 24[th] December,2007 passed by learned In-charge District Judge, Vadodara below Exh-5 application in Regular Civil Suit No.44 of 2007 deserves to be quashed and set aside, mainly for the following facts and reasons:

Facts

(i) It appears from the facts of the case that the present appellant is original defendant No.1, against whom, the respondent No.1 (original plaintiff) has instituted Regular Civil Suit No.44 of 2007 mainly for infringement of copyright. A copyright claimed by present respondent No.1 (original plaintiff) is upon artistic work “Bal Hanuman”, which is presented at Mark 4/3 and 4/4, in the Suit, whereas the present appellant (original defendant No.1) has already released a film “Return Of Hanuman”, which is a fiction film and as per original plaintiff, there is a breach of infringement of the copyright. Film namely “Return Of Hanuman” was going to be released on 28[th] December,2007 and the suit was instituted on 24[th] December,2007 i.e. 4 days prior to thedate of release of the filmand without issuance of Notice to the appellant (defendant No.1), ex-parte ad-interim relief has been granted by the Trial Court.

(ii) It appears from the facts of the case that the original defendants have started giving their advertisement in local daily newspaper from 15[th ]August,2007. Learned counsel for the appellant (original defendant No.1) has pointed out that on 15[th] August,2007, in local daily newspapers an advertisement was given that the film is going to be released in the month of November,2007. Widely, openly, extensively and publicly the advertisements were given frequently, from August,2007 but no suit was ever instituted by the original plaintiff. Learned counsel for the appellant (defendant No.1) submitted that even in the month of September,2007, an advertisement was given in local daily newspaper that the film is going to be released soon, but, the Suit was instituted on 24[th] December,2007. Thus, it appears, prima facie, that - (a) Initially, advertisements were as to “Hanuman Returns” and later on, advertisements are as to “Return of Hanuman”. This was published, in news papers, at least from 15[th] August,2007 onwards widely, openly, extensively and publicly that defendants are making the film.onwards widely, openly, extensively and publicly that defendants are making the film.

(b) Learned counsel for the appellant (original defendant No.1) submitted that distributors and sub-distributors have been appointed by entering into separate contract and cinema halls have been booked, in the whole country and the film was going to be released on 28[th ]December,2007 i.e. today. defendant No.1) submitted that distributors and sub-distributors have been appointed by entering into separate contract and cinema halls have been booked, in the whole country and the film was going to be released on 28[th ]December,2007 i.e. today.

(c) Thus, prima facie plaintiff had knowledge of making of the film by the defendants. Plaintiff waited enough. Only 4 days prior to release of the film, suit is instituted. making of the film by the defendants. Plaintiff waited enough. Only 4 days prior to release of the film, suit is instituted.

Thus, if notice would have been issued by the trial court, defendants could have brought to the notice of the trial court all these facts and the matter could have been decided, prior to release of the film.

(iii) It appears from the facts of the case that the original plaintiff has not made any film on the basis of artistic work of “Bal Hanuman” but licence was given initially, as per submissions of both the counsels to Silver Lines (now known as Silver Line Technologies Limited”) and film namely “Bal Hanuman” was released in the year 2005. Learned counsel for the appellant

(original defendant no.1) submitted that if notice would have been issued by the trial court, all these facts could have been brought to the notice of the trial court. The plaintiff can be compensated in terms of money like earlier agreement.

(iv) Looking to the facts of the case, it appears that there is no satisfaction arrived at by the trialcourt, as required under proviso of Rule 3 of Order XXXIXof the Code of Civil Procedure,1908, that object ofgranting the injunction would be defeated by delay. This satisfaction ought to have been arrived at by the Trial Court, before granting ex-parte interim relief in favour of the original plaintiff. Looking to the impugned order, only satisfaction arrived at for grant of ex-parte interim relief, reads as under:

“I have gone through the record, I find prima facie good case in favour of the applicant and if any exparte order is not made the valuable right of the applicant will be under attack.”

Looking to these reasonings, no satisfaction has been arrived at by the trial court that object of grant of injunction would be defeated by delay, which is sinequa non, for operating an exception i.e. proviso of Rule3 of Order XXXIX of the Code of Civil Procedure,1908. The only reason assigned by the trial court for grant of ex-parte order is “the valuable right of the applicant will be under attack.” How and why this right is under attack-is not reflected in the order. For grant of exparteinterim relief “no notice” and “no reasons” cannot gotogether.It should be kept in mind by those, who areengaged, in justice delivery system, that as far aspossible, as a matter of rule, before passing any adverseorder against anyone, at least, an opportunity of beingheard ought to be given. Sometimes it is difficult togive an opportunity of being heard before passing adverseorder. In these circumstances also, a judge must make allendevour or attempts to make it possible, to give anopportunity of being heard. This is an art, with which,the judges are wedded with and if a judge is of theopinion that object of grant of injunction would bedefeated by delay, than only, by recording reasonstherefore, an exception can be followed as referred inproviso of Rule 3 of Order XXXIX of the Code of CivilProcedure. In facts of the present case, notice could have issued and could have been made returnable in a day or two. As the whole suit as well as stay application, is pending before the Trial Court, this Court is not much analyzing the facts, in detail. Learned counsel for both the sides have argued the matter in detail, but this Court is not discussing about the merits and demerits of Exh-5 application. Suffice it to say at this stage, that the trial court ought to have issued Notice and made it returnable in a day or two, i.e. prior to date of release of the film. It has been held by Hon'ble Supreme Court in the case of Shiv Kumar Chadha V/s. Municipal Corporation of Delhi and others reported in(1993)3 SCC 161, especially para 32 and 33, read as under:

“32.Power to grant junction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautiouswhen the said power is being exercisedwithout notice or hearing the party who isto be affected by the order so passed. Thatis why Rule 3 of Order 39 of the Coderequires that in all cases the Court shall,before grant of an injunction, direct noticeof the application to be given to theopposite party, except where it appears thatobject of granting injunction itself wouldbe defeated by delay. By the Civil Procedure Code (Amendment) Act,1976, a proviso has been added to the said rule saying that “where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...”

33. It has come to our notice that inspiteoftheaforesaidstatutoryrequirement, the Courts have been passingorders of injunction before issuance ofnotices or hearing the parties against whomsuch orders are to operate without recordingthe reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.”

(Emphasis supplied)

Likewise, it has been held by Hon'ble Supreme Court in the case of Morgan Stanley Mutual Fund V/s. Kartick Das reported in (1994)4 SCC 225, especially in para 36, reads as under:

“36. As a principle, ex parte injunction could begranted only under exceptional circumstances. Thefactors which should weigh with the court in the-grant of ex parte injunction are (a)whether irreparable or serious mischief will ensue to the plaintiff;(b)whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;(c)the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;(d)the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; (e)the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.(f)even if granted, the ex parte injunction would be for a limited period of time.(g)General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.”

(Emphasis supplied)

In view of these judicial pronouncements, satisfaction must have been arrived at by the trial court that the object of grant of injunction would be defeated by delay. There is no such satisfaction in the impugned order. It submitted by learned counsel for appellant (original defendant No.1) that had there been a notice, the following vital facts could have been brought to the notice of the trial Court:

(a) advertisements from August,2007 onwards;(b)earlier agreement;(b)earlier agreement;

(c) expenditure of approximately Rs.15 Crores; (d)by now, already agreements have been entered into for appointment of distributors, sub-distributors, booking of cinema halls, all over distributors, booking of cinema halls, all over the country; (e)readiness, by defendants to maintain accounts of income and expenditure due to release of the film;of income and expenditure due to release of the film; (g)imagination about picture of “Shri Hanumanji” is more or less similar, in mind-set of people is more or less similar, in mind-set of people of this country. Therefore if any two ormore persons, of this country, draws, a picture of “Shri Hanumanji”, several features will be common.

4. In view of the aforesaid facts, reasons and judicialpronouncements,theorderdated24[th ]

December,2007 passed by learned In-charge District Judge, Vadodara below Exh-5 application in Regular Civil Suit No.44 of 2007 is hereby quashed and set aside. The original defendants are hereby directed to maintain accounts of income and expenditure of the film “Return of Hanuman” and shall be presented before the Trial Court, if it is so ordered. Learned counsel for the original plaintiff has submitted in detail about breach of ex-parte interim relief and also pointed out that there is territorial jurisdiction at the Court of Vadodara and once prima facie case is made out, stay ought to have been granted. As the main matter is pending before the Trial Court, all these points of territorial jurisdiction, contempt and whether there is breach of artistic work of “Bal Hanuman” or not, shall be raised before the Trial Court. As per proviso of Rule 3 of Order XXXIX of the Code of Civil Procedure,1908, in my opinion, at this stage, it is proper to point out that no such satisfaction has been arrived at by the trial court that object of grant of injunction would be defeated by delay. The plaintiff has waited enough from the month of August,2007. The suit was instituted on 24[th] December,2007 i.e. 4 days prior to the date of release of the film. As the returnable date is fixed by the trial Court on 17[th ]January,2008, the plaintiff may not get chance to argue out the matter before the Trial Court prior to returnable date. Learned counsel for the plaintiff has relied upon the judgement delivered by this Court reported in 1992(2) GLR 1049 and 1998(2) GLR 1776 and pointed out that returnable date may be preponed and immediate hearing may be fixed by this Court. Looking to the aforesaid two decisions, learned counsel for the appellant submitted that they are ready to go on with hearing before the Trial Court immediately and, therefore, defendants are

hereby directed to file their reply to Exh-5 application, if they so choose, on or before, 2[nd] January,2008 and the hearing of Exh-5 application is fixed on 7[th] January,2008. Trial Court will decide Exh-5 application on its own merits and on the basis of documents on record and without being influenced by ex-parte interim relief granted by the trial court as well as without being influenced by the order passed by this Court. Rule made absolute with no order as to costs. Civil Application is also disposed of accordingly.

(D.N.PATEL,J)

5. Learned counsel for respondent no.1 (original plaintiff) prayed for stay of the aforesaid order, which is being opposed by learned counsel for original defendants. Looking to the facts and circumstances of the case and the reasons stated hereinabove, stay as prayed for by learned counsel for respondent no.1 is not granted.

(D.N.PATEL,J)

*dipti