Kadhaas Untold Private Limited vs Sudhas V
2021 Latest Caselaw 21882 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                        FAO NO. 61 OF 2021
  AGAINST THE ORDER DATED 30/07/2021 IN I.A.NO.03 OF 2021 IN OS
            32/2021 OF DISTRICT COURT - VI, ERNAKULAM


APPELLANTS/RESPONDENTS 1-2/DEFENDANTS 1-2:

    1     KADHAAS UNTOLD PRIVATE LIMITED
          DOOR NO.367/8-3, SREESLYAM,
          THANDACHILEZHATHU,
          PATTATHANAM,
          MUKUNDAPURAM P.O.,
          CHAVARA, KOLLAM-691 585.
          REPRESENTED BY ITS MANAGING DIRECTOR.

    2     VISHNU VENUKUTTAN PILLAI,
          MANAGING DIRECTOR,
          KADHAAS UNTOLD PRIVATE LIMITED,
          DOOR NO.367/8-3, SREESLYAM,
          THANDACHILEZHATHU, PATTATHANAM,
          MUKUNDAPURAM P.O.,
          CHAVARA, KOLLAM-691 585.

          BY ADVS.
          B.G.HARINDRANATH
          ANANDAPADMANABHAN UNNIKRISHNAN
          SHERYL ELIZABATH SEBASTIAN



RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 6/PLAINTIFF & DEFENDANTS
3 TO 6:

    1     SUDHAS V, CHALILPARAMBIL HOUSE, MALAPARAMBA P.O.,
          KOZHIKODE-673 009.

    2     P.D PRASAD, FLAT NO.379, ROAD NO.82, FILM NAGAR,
          HYDERABAD, TELUNGANA-500 033.

    3     MUHAMMED MUSTAFA, NAVALIPARAMBA, NETHAJI ROAD,
          THENJIPPALAM P.O., MALAPPURAM-673 636.

    4     NIKHIL, 5/102, AMBALPURAY VEEDU, PEREUVALLOOR P.O.,
          MALAPPURAM-673 638.
 FAO NO. 61 OF 2021               2


    5     ABDUL VAHID K.T., 17/112,
          KAZHUNGUMTHOTTATHIL PANTHOTTIYIL HOUSE,
          PARAMBIL PEEDIKA,
          MALAPPURAM-676 317.

          BY ADVS.
          LATHEESH SEBASTIAN
          SANDHYA R.NAIR
          M.K.MUFEED
          PRABISHA T.P.
          T.SUKESH ROY
          MUHAMMED YASIL
          DEEPA JOSE GEORGE
          G.SREEKUMAR (CHELUR)


     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 FAO NO. 61 OF 2021                              3



                                        JUDGMENT

The release of a movie by name "Kappela" and

re-making of it in Telugu language was sought to be

restrained by maintaining a suit for injunction

simplicitor by the plaintiff and obtained a temporary ex

parte injunction against the defendants 1 and 2 and other

defendants including the persons, who were entrusted with

the work of re-making in Telugu language. The

plaintiff's claim in the suit that he is one of the four

script writers of the movie and hence his name should

find a place in the title of the movie. The trial court

after hearing the plaintiff issued an ex parte injunction

as sought for by the plaintiff, which is extracted below

for reference:

"Heard the petitioners counsel.

Perused the affidavit in support of the petition as well as the documents. I am satisfied that a prima facie case is made out against the respondents 1 to 3 and if interim injunction is not granted, the purpose of the suit itself will be defeated. Hence, interim injunction granted restraining the respondents 1 to 3

or their agents or any other persons claiming title through the respondent 1 to 3 from dubbing, re-producing, and remaking the Malayalam film 'Kappela' in any other languages in India or outside or to produce, dub, remake any other film having the same story of the said film 'Kappela' including shooting of film infringing the copyright of the petitioner without the written permission of the petitioner until further orders."

2. An ex parte order of injunction was granted

on 26/7/2021 without notice to the

respondent/defendant therein. On 23/07/2021, the

suit was filed. Counter to the injunction

application was submitted on 09/08/2021, after

getting notice. Even after the expiry of thirty days

from the date of passing of the order of injunction,

the matter was not heard by the trial court and no

order was passed either confirming or rejecting the

order of injunction. After the lapse of more than 45

days, the defendant Nos.1 and 2 came up in appeal on

15/09/2021 aggrieved by the said ex parte order of

injunction. A preliminary objection regarding

maintainability of appeal was raised on the ground

that the order should be construed as one under Order

XXXIX Rule 3-A C.P.C. and that there is no provision

for an appeal against the said order and relied on

the two decisions, one rendered by this Court in

V.T.Thomas v. Malayala Manorama Co.Ltd. (1988 (1) KLT

433) and the other by the High Court of Madras in

Abdul Shukoor Sahib v. Umachander and others (1976

SCC Online Mad 57 : AIR 1976 Mad 350).

3. It is true that normally it is not

permissible to file an appeal against an ex parte

order of injunction, unless there is failure on the

part of the trial court to comply with the mandate

under Order XXXIX Rule 3-A C.P.C.. When there is

laches on the part of the trial court to take up the

matter within the time as specified under Rule 3-A of

Order XXXIX C.P.C., unless it was delayed on account

of the inaction on the part of the opposite party.

The legal consequences thereof was taken into

consideration and suggestions were made by the Apex

Court in A.Venkatasubbiah Naidu v. S.Chellappan and

Others [(2000) 7 SCC 695]. Paragraph 21 of the said

judgment is extracted below for reference:

"21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate

court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."

4. The legal position, thus, settled that when

the trial court flouted the mandate under Rule 3-A of

Order XXXIX C.P.C., the aggrieved party shall be

entitled to a right of appeal notwithstanding the

pendency of the application for grant or vacation of

temporary injunction against the order remaining in

force. It is further observed by the Apex Court that

in such appeal, "the appellate court shall be obliged

to entertain the appeal and further to take note of

the omission of the subordinate court in complying

with the provisions of Rule 3-A. In appropriate

cases the appellate court apart from granting or

vacating or modifying the order of such injunction,

may suggest suitable action against the erring

judicial officer, including recommendation to take

steps for making adverse entry in his ACRs. Failure

to decide the application or vacate the ex parte

temporary injunction shall, for the purposes of the

appeal, be deemed to be the final order passed on the

application for temporary injunction, on the date of

expiry of thirty days mentioned in the Rule". The

legal position being settled so, further discussion

is not necessary to conclude that when there is a

clear default, violation, failure to comply with the

requirement under Rule 3-A, the order shall be deemed

to be a final order for the purpose of the appeal.

Hence there is no much merit in the preliminary

objection raised.

5. On coming into the merits, even going by the

plaint, the claim of the plaintiff is limited to the

grievance that his name was not endorsed in the movie

or its title, though he was one among the four

persons participated in the preparation of script. It

was argued by the learned counsel that the creativity

shall not be defeated unless the contract contains

such a clause. But no such clause was brought to the

notice of this Court. The claim of plaintiff is with

respect to the right to incorporate his role in the

making of the film and it should be exhibited. Inter

alia, it was contended that the parentage of

creativity has to be retained. Even assuming that the

plaintiff is a co-author of the screen play or a

person actively participated in the preparation of

script, necessarily the suit must be for the relief

in connection with the said right. But what is

sought for in the suit and also by way of injunction

is to stall and stop all the proceedings of the re-

making of the film in Telugu language, which would

prima facie show what is behind it. The right

claimed by the plaintiff was disputed by the

defendants on the ground that it was prepared by

three persons and on one occasion, the plaintiff,

though participated, subsequently had withdrawn. It

is further submitted that the script and the screen

play is the result of work done by the said three

persons with whom they had entered into a contract.

When the plaintiff's claim was disputed and denied, a

mere suit for injunction cannot be maintained. There

is no substantial prayer for declaration of disputed

right claimed by the plaintiff. The legal position

is very much settled by the Apex Court in a catena of

decisions including the decision drawn in Jhardhand

State Housing Board v. Didar Singh and Another

[(2019) 17 SCC 692]. It is true that the plaintiff

can amend the plaint at any time for incorporation of

a substantial relief of declaration, but till that

time, a mere suit for injunction would stand

defective on account of the dispute and denial raised

by the defendants with respect to the claim raised.

Hence, the injunction granted without looking into

the maintainability of the suit cannot be sustained.

6. Further, the relief sought in the suit and

the interim injunction application is not for

preserving the alleged right claimed by the plaintiff

i.e. his name should find a place in the movie as one

of the persons having the parentage of creativity.

What is sought by the plaintiff is the entire

stoppage of the re-making of the movie in Telugu

language. It would show that the relief sought either

in the suit or in the interim injunction application

is not for the purpose of preserving the claim of

plaintiff, but to stall the entire proceedings of

re-making of the film and obtained an ex parte

injunction under that guise. In fact, there is no

cause of action for stoppage of entire re-making of

the movie in Telugu language even going by the claim

raised by the plaintiff in the suit.

7. Yet another striking aspect was also brought

to the notice of this Court that the suit is for a

decree of injunction in terms with the relief sought

in the temporary injunction application. Such a kind

of injunction, if granted, that too, without hearing

the respondents would amount to granting a decree as

claimed in the suit without its trial. Such practice

was deprecated by several decisions of this Court and

the Apex Court.

8. In short, the trial court while granting

temporary injunction has failed to consider even a

prima facie case for the grant of relief as sought

for by way of temporary injunction and that has

resulted in miscarriage of justice. Hence, the

temporary injunction granted is liable to be vacated.

I do so, without prejudice to the right of parties to

take up the issue in the trial court for the purpose

of passing a final order in the interlocutory

application, for which the trial court shall fix a

convenient day and dispose of the same after

affording an opportunity of hearing to both the

parties. Till that time, the temporary injunction

granted will stand vacated.

The appeal is allowed accordingly. No costs.

Sd/-

P.SOMARAJAN JUDGE

msp

APPENDIX OF FAO 61/2021

PETITIONER ANNEXURES

Annexure A1 A TRUE COPY OF THE PLAINT IN OS NO.32/21 ON THE FILE OF THE HON'BLE DISTRICT JUDGE VI-ERNAKULAM DATED 19.7.2021.

Annexure A2 A TRUE COPY OF THE IA 3/21 IN OS NO.32/21 DATED 19.7.2021.

Annexure A3 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE APPELLANTS HEREIN IN I.A.3/21 IN OS 32/21 BEFORE THE HON'BLE DISTRICT JUDGE VI-ERNAKULAM DATED 5.8.2021.

Annexure A4 A TRUE COPY OF INTERIM ORDER DATED 7.9.2021 IN OP(CIVIL)1476/21.

RESPONDENTS ANNEXURES

ANNEXURE R1(A) TRUE COPY OF THE CAVEAT FILED BY THE 1ST APPELLANT BEFORE THE SUB COURT, ERNAKULAM ON 23.07.2021

ANNEXURE R1(B) TRUE COPY OF THE CAVEAT FILED BY THE 1ST APPELLANT BEFORE THE DISTRICT COURT, ERNAKULAM ON 23.07.2021

ANNEXURE R1(C) TRUE COPY OF THE FACEBOOK POST OF THE 2ND RESPONDENT HEREIN

ANNEXURE R1(D TRUE COPY OF THE COUNTER AFFIDAVIT OF THE 2ND RESPONDENT, IN I.A.NO.3 OF 2021 IN O.S.NO.32/2021 OF DISTRICT COURT, ERNAKULAM

ANNEXURE R1(E) TRUE COPY OF THE IMPLEADING PETITION AS I.A.NO.3 OF 2021 IN O.S.NO.32/2021