Kerala High Court
Hombale Films Llp vs Thaikkudam Bridge on 23 November, 2022
1
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944
OP(C) NO. 2281 OF 2022(FILING NO.)
AGAINST THE ORDER/JUDGMENT IN IA 2/2022 IN OS 14/2022 OF DISTRICT COURT
& SESSIONS COURT,KOZHIKODE
PETITIONER/S:
HOMBALE FILMS LLP,2ND FLOOR, SAMPARKA SOUDHA, OPP. ORION
MALL, RAJAJINAGAR, BENGALURU, KARNATAKA ,REPRESENTED BY ITS
AUTHORIZED SIGNATORY SHRI. KAPIL KUMAR SAHU, PIN - 560010
BY ADVS.
SANTHOSH MATHEW
SAIKRISHNA RAJAGOPAL
SIDHARTH CHOPRA
ARUN THOMAS
ANIL SEBASTIAN PULICKEL
ABI BENNY AREECKAL
MATHEW NEVIN THOMAS
KARTHIK RAJAGOPAL
KURIAN ANTONY MATHEW
RESPONDENT/S:
1 THAIKKUDAM BRIDGE,223B, DHWANI, UNITY LANE, MANIYANKALA
ROAD,VADACODE P.O., ERNAKULAM, KERALA
REPRESENTED BY ITS MANAGING PARTNER, GOVIND P. MENON
, PIN - 682021
2 RISHAB SHETTY ,AGED 39 YEARS,DIRECTOR AND ACTOR, S/O.
Y.BHASKAR. SHETTY,WG72 + 347, BEML LAYOUT, 7TH STAGE,
MAILASANDRA, BANGALORE , PIN - 560098
3 PRITHVIRAJ FILMS LLP,NO. 59/300-E, FLAT NO. 4, ASSET CASA
GRANDE,MALIEKAL ROAD, THEVARA, COCHIN
COCHIN KERALA
, PIN - 682013
4 AMAZON SELLER SERVICES PRIVATE LIMITED
8TH FLOOR, WORLD TRADE CENTRE, BRIGADE GATEWAY CAMPUS,
26/1, DR. RAJKUMAR ROAD, MALLESHWARAM (WEST), BANGALORE,
PIN - 560055
2
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
5 B.L. AJANEESH (A.K.A AJJU),AGED 34 YEARS, S/O.LOKMATH
343, DIVIK GOKUL, 3RD FLOOR, DOOR NUMBER 3/6,
14TH CROSS, 7TH MAIN, JAYANAGAR 2ND BLOCK,
BANGALORE ,, PIN - 560011
6 THE MATHRUBHUMI PRINTING AND PUBLISHING CO. LTD
M.J. KRISHNAMOHAN MEMORIAL BUILDING,
K.P. KESAVA MENON ROAD, KOZHIKODE
, PIN - 673001
7 GOOGLE INDIA ,BLOCK 1, DIVYASREE OMEGA,
SURVEY NO. 13, KONDAPUR VILLAGE,
HYDERABAD, ANDHRA PRADESH, INDIA
8 SPOTIFY INDIA PRIVATE LIMITED,OFFICE NO. V-01, 5TH AND 6TH
FLOOR, MAFATLAL HOUSE (BUILDING), H.T. PAREKH MARG,
BACKBAY RECLAMATION, MUMBAI,MUMBAI CITY, MAHARASHTRA
, PIN - 400020
9 WYNK LIMITED, BHARTI CRESENT, 1, NELSON MANDELA ROAD,
VASANT KUNJ, PHASE-II, NEW DELHI
SOUTH DELHI DL
, PIN - 110070
10 SAAVN MEDIA LIMITED ,A WING, 19TH FLOOR, ONE BKC. G BLOCK,
BANDRA (EAST), MUMBAI ,, PIN - 400051
11 PRITHVIRAJ PRODUCTIONS LLP,59/300-E, FLAT NO. 4, ASSET
CASSA GRANDE, MALIEKAL ROAD, COCHIN, ERNAKULAM
, PIN - 682013
12 PRITHVIRAJ PRODUCTIONS PRIVATE LIMITED
59/300-E, FLAT NO. 4, ASSET CASSA GRANDE,
MALIEKAL ROAD, COCHIN, ERNAKULAM
, PIN - 682013
13 PRITHVIRAJ SUKUMARAN ,AGED 37 YEARS,S/O. SUKUMARAN,
59/300-E, FLAT NO. 4, ASSET CASSA GRANDE, MALIEKAL ROAD,
COCHIN, ERNAKULAM,, PIN - 682013
14 SUPRIYA VIJAY MENON,AGED 35 YEARS,W/O. PRITHVIRAJ SUKUMARAN
59/300-E, FLAT NO. 4, ASSET CASSA GRANDE, MALIEKAL ROAD,
COCHIN, ERNAKULAM ,, PIN - 682013
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022 ALONG
WITH UNNUMBERED OPC FILING NO.2193/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944
OP(C) NO. 2193 OF 2022(FILING NO.)
AGAINST THE ORDER/JUDGMENT IN IA 2/2022 IN OS 14/2022 OF DISTRICT COURT
& SESSIONS COURT,KOZHIKODE
PETITIONER/S:
HOMBALE FILMS LLP
2ND FLOOR, SAMPARKA SOUDHA, OPP. ORION MALL,
RAJAJINAGAR, BENGALURU, KARNATAKA
REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI. KAPIL KUMAR
SAHU,, PIN - 560010
BY ADVS.
SANTHOSH MATHEW
ARUN THOMAS
ANIL SEBASTIAN PULICKEL
ABI BENNY AREECKAL
MATHEW NEVIN THOMAS
KARTHIK RAJAGOPAL
KURIAN ANTONY MATHEW
RESPONDENT/S:
1. THAIKKUDAM BRIDGE
223B, DHWANI, UNITY LANE, MANIYANKALA ROAD,
VADACODE P.O., ERNAKULAM, KERALA
REPRESENTED BY ITS MANAGING PARTNER, GOVIND P. MENON
, PIN - 682021
2
RISHAB SHETTY ,AGED 39 YEARS,DIRECTOR AND ACTOR, WG72 +
347, BEML LAYOUT, 7TH STAGE,
MAILASANDRA, BANGALORE , PIN - 560098
4
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
3 PRITHVIRAJ FILMS LLP,NO. 59/300-E, FLAT NO. 4, ASSET CASA
GRANDE,MALIEKAL ROAD, THEVARA, COCHIN
COCHIN KERALA , PIN - 682013
AMAZON SELLER SERVICES PRIVATE LIMITED
4 8TH FLOOR, WORLD TRADE CENTRE, BRIGADE GATEWAY CAMPUS,
26/1, DR. RAJKUMAR ROAD, MALLESHWARAM (WEST), BANGALORE,
PIN - 560055
B.L. AJANEESH (A.K.A AJJU),AGED 34 YEARS, S/O.LOKMATH
5 343, DIVIK GOKUL, 3RD FLOOR, DOOR NUMBER 3/6,
14TH CROSS, 7TH MAIN, JAYANAGAR 2ND BLOCK,
BANGALORE ,, PIN - 560011
THE MATHRUBHUMI PRINTING AND PUBLISHING CO. LTD
6 M.J. KRISHNAMOHAN MEMORIAL BUILDING,
K.P. KESAVA MENON ROAD, KOZHIKODE
, PIN - 673001
GOOGLE INDIA ,BLOCK 1, DIVYASREE OMEGA,
7 SURVEY NO. 13, KONDAPUR VILLAGE,
HYDERABAD, ANDHRA PRADESH, INDIA
SPOTIFY INDIA PRIVATE LIMITED,OFFICE NO. V-01, 5TH AND 6TH
8 FLOOR, MAFATLAL HOUSE (BUILDING), H.T. PAREKH MARG,
BACKBAY RECLAMATION, MUMBAI,MUMBAI CITY, MAHARASHTRA
, PIN - 400020
WYNK LIMITED, BHARTI CRESENT, 1, NELSON MANDELA ROAD,
9 VASANT KUNJ, PHASE-II, NEW DELHI
SOUTH DELHI DL
, PIN - 110070
SAAVN MEDIA LIMITED ,A WING, 19TH FLOOR, ONE BKC. G BLOCK,
BANDRA (EAST), MUMBAI ,, PIN - 400051
10
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2022 ALONG WITH UNNUMBERED OPC 2281/2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
5
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
C.S DIAS,J.
---------------------------
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193 of 2022) of 2022
-----------------------------
Dated this the 23rd day of November, 2022.
COMMON JUDGMENT
As the two original petitions are between the same parties
and are filed challenging the same order, they are consolidated
and considered together.
2. Unnumbered O.P(C) (filing number 2193/2022) was
presented on 2.11.2022 to call for records leading to the order
dated 28.10.2022 passed in I.A.No.2/2022 in O.S No.14/2022 of
the Court of the District Judge, Kozhikode (court below).
3. Subsequently, unnumbered O.P(C) (filing number
2281/2022) was presented on 9.11.2022 by producing the
order dated 28.10.2022 as Ext.P1.
4. The common facts in the two original petitions
leading to Ext.P1 order, in a nutshell, are:
(i) The first respondent, a musical band named
'Thaikudam Bridge', has filed the above suit against the
petitioner and respondents 2 to 10, inter-alia, to declare they
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
are the original author and composer having absolute moral
and certain legal rights and entitlements reserved to it under
the Copyright Act in the musical work and sound recording
named 'Navarasam'.
(ii) Along with the suit, the first respondent filed
I.A.No.2/2022 against the petitioner and respondents 2 to 5 and
7 to 10 to pass an order of temporary injunction, to restrain the
above respondents from exhibiting, releasing on Over the Top
platforms, streaming, and/or in any manner communicating to
the Public in and/or through their services; the
Cinematographic Film - 'Kantara' with the synchronised song
'Varaha Roopam' without crediting the petitioner, and pass an
ad-interim order to the same effect, without notice to the
respondents in the application, till the disposal of the
application.
(iii) The court below has restrained the respondents in the
application from using the music in 'Varaha Roopam' without
the permission of the petitioner as a music in the Kannada film
'Kantara'.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
(iv) The petitioner is a limited liability partnership firm and
is the producer of the film 'Kantara', which includes the song
'Varaha Roopam'.
(v) On 02.11.2022, the petitioner received copies of the
impugned suit, the application and six of the seven documents.
Even though the petitioner applied for the certified copies of
the documents, the seventh document is yet to be issued.
(vi) The petitioner received Ext.P7 notice from the sixth
respondent claiming ownership of the first respondent's song.
The petitioner issued Ext.P8 limited holding response.
(vii) On 26.10.2022, the petitioner filed a caveat before
the court below to defend its rights. However, the suit was filed
by the first respondent and not the sixth respondent to
circumvent the caveat and mislead the court below.
(viii) On 04.11.2022, the petitioner entered appearance in
the suit and submitted before the court below, inter alia, that
the first respondent had not complied with the mandate under
Order 39 Rule 3 (a) of the Code of Civil Procedure,1908 (in
short 'Code').
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
(ix) The petitioner informed the court below that the film
was released on 30.09.2022 and is playing in 6000 theatres
worldwide; the dispute is to be adjudicated by a Commercial
Court, and the impugned order has been challenged before this
Court.
(x) The petitioner has learnt, after the passing of the
impugned order, the sixth respondent has filed O.S.No.4/2022
before the District Court, Palakkad, through the same lawyer
who has filed the present suit, and an ad-interim order has
been passed in the said suit also. The said suit has been filed to
evade the caveats filed by the petitioner.
(xi) The jurisdiction of the court below has been invoked
erroneously; therefore, the impugned order is a nullity. The
court below does not have the subject matter jurisdiction to
entertain the suit in the light of the Copyright Act, 1957, read
with the Commercial Courts, Commercial Division and
Commercial Appellate Division of the High Court Act, 2015. The
first respondent has deliberately kept the valuation of the suit
vague to forum shop and oust the jurisdiction of the
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
Commercial Court. The court below has no territorial jurisdiction
to entertain the suit.
(xii) The maintainability of the suit and the application is a
predominant issue. Hence, this Court may set aside Ext.P1
order and direct the court below to decide the maintainability
of the suit.
(xiii) The first respondent has no locus standi to institute
the suit.
(xiv) The court below has failed to note that the balance of
convenience is in favour of the petitioner, who is suffering
irreparable harm due to the impugned order
(xv) The impugned order has been passed without
affording the petitioner an opportunity of being heard. The
court below has exceeded its jurisdiction and acted with
material irregularity. Hence, the original petition.
5. When Unnumbered O.P(C) (filing number
2193/2022) was presented, the Registry noted a defect that
the petitioner has not produced a copy of the impugned order.
The learned counsel appearing for the petitioner had replied
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
that, as the petitioner was not served with a copy of the order,
the original petition may be posted before the Bench.
6. When the original petition came up for consideration on
02.11.2022, this Court upheld the objection of the Registry and
directed the petitioner to produce the order.
7. Without producing the order in the first original petition,
the petitioner filed the subsequent Unnumbered O.P(C) (filing
Number 2281/2022). The Registry marked the original petition
as defective for the following reasons:
(a) In view of Order 43 Rule 1 of the Code, whether
O.P(C) is the proper remedy.
(b) The respondents 6, 11 to 14 have not been
impleaded in the original petition.
(c) The status of the parties is different.
(d) The respondents 3, 4, 6 to 12 are not represented
by any person.
8. The learned counsel appearing for the petitioners
replied to be above defects as follows:
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
(i) Ext. P1 order is only an interim order and not a final
one, and it is not appealable under Order 43 Rule 1.
(ii) As the District Court, Kozhikode does not have the
jurisdiction, the original petition is maintainable as laid down by
the Delhi High Court in Vishal Pipes Limited v. Babia Pipes
Industry and others [2022 SCC online Delhi 1730].
(iii) It is well settled by the Honourable Supreme Court
that an alternative remedy will not operate as a bar when an
order has been passed in violation of principles of natural
justice or is without jurisdiction.
(iv) The status of the parties is correctly shown, and the
respondents 3, 4, 6 to 12 are private entities and their
representatives are not known to the petitioner.
(v) Hence, the matter may be posted before the Bench.
9. Accordingly, the original petitions were posted before
the bench.
10. Heard; Sri.S.Sreekumar, the learned Senior Counsel
appearing for the petitioner assisted by Sri.Santhosh Mathew.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
11. Sri.S.Sreekumar vehemently argued that the first
respondent has no locus standi to file the suit since the first
respondent had assigned its rights to the sixth respondent. As
per the allegations in the plaint, the assignment was done in
2015, whereas the song was composed only in 2017. The
assignment deed was executed by the members of a music
band with the sixth respondent and not with the first
respondent. The duration of the assignment deed was for two
years, with effect from 14.09.2015. A reading of the assignment
deed shows that the cause of action for filing the suit is false.
The trailer for the movie was released on 05.09.2022 on social
media, and the movie was released on 30.09.2022. The first
respondent filed the suit on 28.10.2022. Subsequently, the
sixth respondent filed O.S.No.4/2022 before the Court of the
District Judge, Palakkad, on 31.10.2022. Even though the
petitioner had lodged a caveat, the same was circumvented by
filing the suit before the court below through the first
respondent. The valuation in the plaint is incorrect. The suit is
only maintainable before the Commercial Court because, in the
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
lawyer notice issued by the sixth respondent, they have
claimed Rs.2/- crore as damage. In view of the Copyrights Act
and the Commercial Courts Act, only the Commercial Courts
have jurisdiction to entertain the suit. Without looking into
these pivotal aspects, the court below has passed the
impugned Ext.P1 order. Ext.P1 is manifestly illegal and passed
by a Court lacking inherent, pecuniary and territorial
jurisdiction. Hence, Ext.P1 is void ab-initio. Therefore, this court
may set aside Ext.P1 order in exercise of its supervisory powers
and direct the court below to consider the maintainability of the
suit. The learned Senior Counsel placed reliance on the
decision of the Hon'ble Supreme Court in Raj Shri Agarwal @
Ram Shri Agarwal and anr. v. Sudheer Mohan and ors.
[2020 Live Law SC 864] to drive home his contention that
the remedy available under Article 227 of the Constitution of
India cannot be taken away, and there is a distinction between
the entertainability and maintainability of the original petition.
He also relied on the decisions of the Hon'ble Supreme Court in
Whirlpool Corporation v. Registrar Of Trade Marks
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
[(1998) 8 SCC 1], Surya Dev Raj v. Ram Chander Raj
[(2003) 6 SCC 675], Harbanslal Sahnia and Anr. V. Indian
Oil Corpn. Ltd. and Ors.[(2003) 2 SCC 107], M/s. Magadh
Sugar and Energy Ltd. V. The State Of Bihar[ 2021 SCC
Online SC 801], M/s. Radha Krishan Industries v. The State
Of Himachal Pradesh [(2021) 6 SCC 771] and M/s. Patil
Automation Private Ltd v. Rakheja Engineers Private Ltd
[2022 SCC online SC 1028] to buttress his contentions that this
Court has power and jurisdiction to set aside Ext P1 order under
Article 227 of the Constitution of India without relegating the
petitioner to challenge the order in appeal.
12. After the original petitions were heard on 11.11.2022
and reserved for orders, the clerk of Sri. Santhosh Mathew
handed over a sealed cover to this Court. Accordingly, this
Court reposted the original petitions on 18.11.2022 as 'to be
spoken to'.
13. Sri. Santhosh Mathew then submitted that he had sent
the sealed cover containing the copies of the counter affidavit
filed by the petitioner to I.A No.2/2022 and the application filed
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
under Order 7 Rule 11 of the Code to reject the plaint on the
grounds already urged before this Court. Although the learned
Counsel was directed to produce the said documents in the
right royal way, if he so desired, he submitted, the documents
were handed over only for information and the petitioner was
sticking to the merits of the original petitions.
14. In the light of the above submission made by the
learned counsel for the petitioner, this Court had directed the
Registry to ascertain from the court below whether any counter
affidavit has been filed in IA 2/2022 and any application has
been filed in the suit. It is communicated by the court below
that the petitioner has filed its counter affidavit to IA 2/2022,
and the application was posted to 19.11.2022.
15. The common question that emanates for
consideration in the original petitions is whether this Court is to
interfere with Ext.P1 order invoking its supervisory jurisdiction
under Article 227 of the Constitution of India.
16. The grievance of the petitioner in the original petitions
is manifold; i.e., the first respondent has no locus standi to file
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
the suit in view of the assignment made in favour of the sixth
respondent; the first respondent has violated the provisions of
Order 39 Rule 3 (a) of the Code; the court below has no
inherent, pecuniary or territorial jurisdiction to entertain the
suit; Ext P1 order is non-est as it is passed by a court lacking
jurisdiction etc. Thus, the petitioner seeks to get Ext P1 order
set aside under Article 227 of the Constitution of India.
17. The decisions that have been relied on by the learned
Counsel for the petitioner, other than for the decision in Raj Shri
Agarwal, are cases decided under Article 226 of the
Constitution of India and not Article 227. Even in the said
decisions, it is held that the rule of exclusion of writ jurisdiction
in view of the alternative remedy is the rule of discretion and
not of compulsion.
18. The power of superintendence of this Court under
Article 227 of the Constitution of India is well-settled in a host
of judicial pronouncements. The earliest of the decisions on the
point is the decision in Waryam Singh and another v.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
Amarnath and another [AIR 1954 SC 215], wherein a five
Judge Bench of the Hon'ble Supreme Court held thus:
"12. This power of superintendence conferred by Article 227 is, as
pointed out by Harries C.J., in Dalmia Jain Airways Ltd. v. Sukumar
Mukherjee [AIR 1951 Cal 193], to be exercised most sparingly and only in
appropriate cases in order to keep the subordinate courts within the
bounds of their authority and not for correcting mere errors. xxx xxx
xxx".
19. In Shalini Shyam Shetty & anr. V. Rajendra
Shankar Patil [(2010) 8 SCC 329], the principles in Waryam
Singh have been reiterated by the Hon'ble Supreme Court as
follows:
"49. On an analysis of the aforesaid decisions of this Court, the
following principles on the exercise of High Court's jurisdiction under
Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a
petition under Article 227. The mode of exercise of power by the High
Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ
petition. The history of the conferment of writ jurisdiction on High
Courts is substantially different from the history of conferment of the
power of superintendence on the High Courts under Article 227 and
have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its
power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or courts
inferior to it. Nor can it, in exercise of this power, act as a
court of appeal over the orders of the court or tribunal
subordinate to it. In cases where an alternative statutory mode
of redressal has been provided, that would also operate as a
restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of
their power of superintendence have been repeatedly laid down by this
Court. In this regard the High Court must be guided by the
principles laid down by the Constitution Bench of this Court
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
in Waryam Singh [AIR 1954 SC 215] and the principles
in Waryam Singh [AIR 1954 SC 215] have been repeatedly
followed by subsequent Constitution Benches and various
other decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC 215] ,
followed in subsequent cases, the High Court in exercise of its
jurisdiction of superintendence can interfere in order only to keep the
tribunals and courts subordinate to it, "within the bounds of their
authority".
(f) In order to ensure that law is followed by such tribunals and
courts by exercising jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of superintendence
when there has been a patent perversity in the orders of the
tribunals and courts subordinate to it or where there has been
a gross and manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
courts subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part of the
basic structure of the Constitution by the Constitution Bench of this
Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997
SCC (L&S) 577] and therefore abridgment by a constitutional
amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At the same time, it
must be remembered that such statutory amendment does not
correspondingly expand the High Court's jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the
High Court under Article 227, it transpires that the main object of this
article is to keep strict administrative and judicial control by the High
Court on the administration of justice within its territory.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
(m) The object of superintendence, both administrative and judicial,
is to maintain efficiency, smooth and orderly functioning of the entire
machinery of justice in such a way as it does not bring it into any
disrepute. The power of interference under this article is to be
kept to the minimum to ensure that the wheel of justice does
not come to a halt and the fountain of justice remains pure and
unpolluted in order to maintain public confidence in the
functioning of the tribunals and courts subordinate to the High
Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief in
individual cases but should be directed for promotion of public
confidence in the administration of justice in the larger public
interest whereas Article 226 is meant for protection of
individual grievance. Therefore, the power under Article 227 may be
unfettered but its exercise is subject to high degree of judicial
discipline pointed out above.
(o) An improper and a frequent exercise of this power will be
counterproductive and will divest this extraordinary power of its
strength and vitality.
20. Again, in Surya Dev Rai v. Ram Chander Rai &
Ors. [(2003) 6 SCC 675] the Hon'ble Supreme Court has held
thus:
"38. Such like matters frequently arise before the High Courts. We sum
up our conclusions in a nutshell, even at the risk of repetition and state
the same as hereunder:
(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in
Section 115 of the Code of Civil Procedure cannot and does not affect
in any manner the jurisdiction of the High Court under Articles 226 and
227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the
High Court, against which remedy of revision has been excluded by
CPC Amendment Act 46 of 1999 are nevertheless open to challenge in,
and continue to be subject to, certiorari and supervisory jurisdiction of
the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction i.e. when a subordinate court is
found to have acted (i) without jurisdiction -- by assuming jurisdiction
where there exists none, or (ii) in excess of its jurisdiction -- by
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
overstepping or crossing the limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of procedure or acting in violation
of principles of natural justice where there is no procedure specified,
and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate courts
within the bounds of their jurisdiction. When a subordinate
court has assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the court in
a manner not permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact or of law
unless the following requirements are satisfied: (i) the error is manifest
and apparent on the face of the proceedings such as when it is based
on clear ignorance or utter disregard of the provisions of law, and (ii) a
grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning. Where
two inferences are reasonably possible and the subordinate court has
chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly and only
in appropriate cases where the judicial conscience of the High
Court dictates it to act lest a gross failure of justice or grave
injustice should occasion. Care, caution and circumspection
need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the pendency of
any suit or proceedings in a subordinate court and the error
though calling for correction is yet capable of being corrected
at the conclusion of the proceedings in an appeal or revision
preferred thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court would
obstruct the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later stage
and refusal to intervene would result in travesty of justice or
where such refusal itself would result in prolonging of the lis.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not convert itself into a court of appeal and
indulge in reappreciation or evaluation of evidence or correct
errors in drawing inferences or correct errors of mere formal or
technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction exercised by
the High Courts in India unlike English courts has almost obliterated the
distinction between the two jurisdictions. While exercising jurisdiction
to issue a writ of certiorari, the High Court may annul or set aside the
act, order or proceedings of the subordinate courts but cannot
substitute its own decision in place thereof. In exercise of supervisory
jurisdiction the High Court may not only give suitable directions so as
to guide the subordinate court as to the manner in which it would act
or proceed thereafter or afresh, the High Court may in appropriate
cases itself make an order in supersession or substitution of the order
of the subordinate court as the court should have made in the facts
and circumstances of the case".
21. Recently, the Hon'ble Supreme Court in M/S
Garment Craft vs Prakash Chand Goel [(2022) 4 SCC 181]
has held as follows:
"15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel v. Garment Craft,
2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained
for several reasons, but primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the Constitution of India.
The High Court exercising supervisory jurisdiction does not act as
a court of first appeal to reappreciate, reweigh the evidence or
facts upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own decision on
facts and conclusion, for that of the inferior court or tribunal.
[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC
217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty or flagrant
abuse, violation of fundamental principles of law or justice. The power
under Article 227 is exercised sparingly in appropriate cases, like
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
when there is no evidence at all to justify, or the finding is so
perverse that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is axiomatic
that such discretionary relief must be exercised to ensure there is
no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate
(P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6)
"6. The scope and ambit of exercise of power and jurisdiction by a
High Court under Article 227 of the Constitution of India is examined
and explained in a number of decisions of this Court. The exercise of
power under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or
required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds of
hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise of
this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
High Court while acting under this Article cannot exercise its
power as an appellate court or substitute its own judgment in
place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High Court
can set aside or ignore the findings of facts of an inferior court
or tribunal, if there is no evidence at all to justify or the finding
is so perverse, that no reasonable person can possibly come to
such a conclusion, which the court or tribunal has come to."
22. The above precedents lay down the broad principles to
be followed by this Court while exercising its supervisory
jurisdiction under Article 227 of the Constitution of India. To
name a few: (i) The power under Article 227 of the Constitution
of India is to be exercised to keep the subordinate courts within
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
the bounds of their authority. (ii) The jurisdiction is to be
exercised sparingly and in appropriate cases with care, caution
and circumspection where the judicial conscience of the High
Court dictates it to act; otherwise, it will result in grave
injustice. (iii) The jurisdiction is not to correct errors of law, fact,
or just because another view is possible. (iv) The exceptional
power of judicial intervention is not to be exercised just for the
grant of relief in individual cases but should be directed to
promote public confidence in the administration of justice in the
larger public interest. (v) The High Court shall not, at the drop
of a hat, exercise its power of superintendence under Article
227 of the Constitution and interfere with the orders of
tribunals or courts inferior to it. (vi) The power is not to be
exercised like a court of appeal. (vii) In cases where there is an
alternative statutory mode of redressal, the same should
operate as a restraint on the exercise of power by the High
Court. (viii) The High Court can interfere in exercise of its power
of superintendence when there has been a patent perversity in
the orders of the tribunals and courts subordinate to it or where
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
there has been a gross and manifest failure of justice or the
basic principles of natural justice have been flouted.
23. The first respondent filed the suit on 28.10.2022. The
court below passed the impugned Ext P1 order on the same
day and posted the suit to 4.11.2022 for return of notice.
24. Even before the petitioner received the copy of Ext.P1
order, they rushed to this court and filed the first original
petition raising manifold contentions, including the lack of
inherent, pecuniary and territorial jurisdiction of the court
below, violation of the provisions of the Order 39 and Section
148 A of the Code, and seek to set aside Ext P1 order under
Article 227 of the Constitution of India.
25. When this Court upheld the objection of the Registry,
directing the petitioner to produce the impugned order, the
petitioner filed the second original petition by producing Ext. P1
order.
26. Ext.P1 order is undoubtedly an ad-interim order of
injunction passed by the court below under Order 39 Rule 1 of
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
the Code after being prima facie satisfied that delay would
defeat the purpose of the suit.
27. An order passed under Order 39 Rule 1 is appealable
under Order 43 Rule 1 (r) of the Code.
28. The Code of Civil Procedure has explicitly laid down
the procedure and the timelines to be followed by the courts
while dealing with applications under Order 39 of the Code. The
Code has also prescribed the hierarchy of Courts that needs to
be approached for the redressal of the grievances of a litigant
confronted with orders passed under the above provision.
29. The supervisory jurisdiction of this Court is not to be
exercised to inter-meddle with every ad-interim order passed
by the subordinate courts. If that is the case, the Courts of
original jurisdiction and appellate Courts will become defunct,
and this Court will be flooded with such litigation, unsettling
and dislodging the legislative framework laid down under the
Code.
30. The contentions raised by the petitioner are mixed and
disputed questions of fact and law, which will have to be dealt
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
with by the Court of the first instance or the appellate court. It
is not for this Court to examine each and every contention
raised in the original petition, that too at the ad-interim stage,
and rule upon their worthiness and correctness. If this Court
carries out such an exercise, it will foreclose the statutory
rights of the parties and will undoubtedly cause grave prejudice
to them.
31. At the cost of repetition, it is reiterated that the
exceptional power of superintendence is not to be exercised at
the drop of a hat at the ad-interim stage, particularly when the
petitioner has an alternative and efficacious statutory remedy
provided under the Code and the special statutes.
32. This Court fails to understand why the petitioner has
directly approached this Court to vacate an ad-interim order
bye-passing the procedure established under law. I don't find
any ground or reason for this Court to interfere with Ext.P1 ad-
interim order at this nascent stage. It is up to the petitioner to
appear before the court below, file its counter
statement/affidavit and raise all its contentions before the court
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
below. In any event, this Court is not persuaded to sit in appeal
over Ext.P1 ad-interim order and examine its legality on the
points urged before this Court under Article 227 of the
Constitution of India. This Court is disinclined to entertain the
original petition for the aforementioned reasons. In the above
conspectus, the original petitions are dismissed, sustaining the
objection of the Registry, which will be without prejudice to the
right of the petitioner to work out its remedies in accordance
with law.
SD/-
Sks/19.11.2022 C.S.DIAS, JUDGE
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
APPENDIX OF OP(C) 2281/2022(Filing No.)
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 28.10.2022 IN
I.A. NO. 2/2022 IN O.S. NO. 14/2022 PASSED BY
THE HON'BLE DISTRICT AND SESSIONS COURT,
KOZHIKODE
Exhibit P2 A TRUE COPY OF PLAINT IN O.S NO. 14/2022 DATED
27.10.2022 ON THE FILE OF THE DISTRICT &
SESSIONS COURT, KOZHIKODE.
Exhibit P3 A TRUE COPY OF THE LIST OF DOCUMENTS IN O.S NO.
14/2022 DATED 27.10.2022 ON THE FILE OF THE
DISTRICT & SESSIONS COURT, KOZHIKODE.
Exhibit P4 A TRUE COPY OF THE I.A NO.2 IN O.S NO. 14/2022
DATED 27.10.2022 ON THE FILE OF THE DISTRICT &
SESSIONS COURT, KOZHIKODE.
Exhibit P5 A TRUE COPY OF THE EMAIL ISSUED BY THE LAWYER
ACTING FOR M/S. PRITHVIRAJ PRODUCTIONS PRIVATE
LIMITED DATED 31.10.2022 TO THE 1ST RESPONDENT/
PLAINTIFF'S COUNSEL.
Exhibit P6 A TRUE COPY OF THE EMAIL RESPONSE DATED
01.11.2022 BY THE 1ST RESPONDENT/ PLAINTIFF'S
COUNSEL IN THE IMPUGNED SUIT.
Exhibit P6(a) A TRUE COPY OF THE AFFIDAVIT OF COMPLIANCE DATED
29.10.2022 BY THE 1ST RESPONDENT/ PLAINTIFF'S
COUNSEL.
Exhibit P7 A TRUE COPY OF THE SIXTH RESPONDENT'S NOTICE
DATED 19.10.2022.
Exhibit P8 A TRUE COPY OF THE LIMITED HOLDING RESPONSE
DATED 21.10.2022 ISSUED BY THE PETITIONER TO THE
6TH RESPONDENT.
Exhibit P9 A TRUE COPY OF THE CAVEAT FILED BY THE
PETITIONER BEFORE THE HONOURABLE DISTRICT AND
SESSIONS COURT, KOZHIKODE.
Exhibit P9(a) A TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT &
SESSIONS COURT, KOZHIKODE DATED 4-11-2022 IN O.S
NO. 14 OF 2022 AS MADE AVAILABLE IN THE E-COURTS
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
PORTAL.
Exhibit P10 A TRUE COPY OF THE CAVEAT DATED 31.10.2022
PURPORTEDLY FILED BY THE 1ST
RESPONDENT/PLAINTIFF BEFORE THIS HON'BLE COURT
IN RELATION TO AN ORDER OF THE PRINCIPAL
DISTRICT AND SESSIONS COURT, THODUPUZHA.
Exhibit P11 A TRUE COPY OF THE COVER WITHIN WHICH THE CAVEAT
WAS SENT BY THE LAWYER OF THE 6TH RESPONDENT.
Exhibit P12 A TRUE COPY OF G.O.(MS.) NO. 51/2020/HOME DATED
24.02.2020.
Exhibit P13 A TRUE COPY OF G.O.(MS.) NO. 53/2022/HOME DATED
18.03.2022.
Unnumbered OP (C)Nos.
(Filing Nos.2281 and 2193
of 2022) of 2022
APPENDIX OF
OP(C) 2193/2022(Filing No.)
PETITIONER EXHIBITS
Exhibit P1 A TYPED COPY OF THE RELEVANT EXTRACTS OF THE
IMPUGNED ORDER AS RECORDED IN THE A DIARY OF THE
HON'BLE DISTRICT AND SESSIONS COURT, KOZHIKODE
DATED 28.10.2022.
Exhibit P2 A TRUE COPY OF THE COPY OF THE IMPUGNED SUIT
DATED 27.10.2022 INCLUDED IN THE ENVELOPE
ADDRESSED TO PRITHVIRAJ FILMS LLP.
Exhibit P3 A TRUE COPY OF COPY OF THE LIST OF DOCUMENTS
INCLUDED IN THE ENVELOPE ADDRESSED TO PRITHVIRAJ
FILMS LLP PRODUCTIONS PRIVATE LIMITED.
Exhibit P4 A TRUE COPY OF THE COPY OF THE IMPUGNED I.A.
DATED 27.10.2022 INCLUDED IN THE ENVELOPE
ADDRESSED TO PRITHVIRAJ FILMS LLP.
Exhibit P5 A TRUE COPY OF THE EMAIL ISSUED BY THE LAWYER
ACTING FOR M/S. PRITHVIRAJ PRODUCTIONS PRIVATE
LIMITED DATED 31.10.2022.
Exhibit P6 A TRUE COPY OF THE EMAIL RESPONSE TO EXT. P5
DATED 01.11.2022 BY THE 1ST RESPONDENT/
PLAINTIFF'S COUNSEL IN THE IMPUGNED SUIT.
Exhibit P7 A TRUE COPY OF THE SIXTH RESPONDENT'S NOTICE
DATED 19.10.2022.
Exhibit P8 A TRUE COPY OF THE LIMITED HOLDING RESPONSE
DATED 21.10.2022 ISSUED BY THE PETITIONER TO THE
6TH RESPONDENT.
Exhibit P9 A TRUE COPY OF THE CAVEAT FILED BY THE
PETITIONER BEFORE THE HONOURABLE DISTRICT AND
SESSIONS COURT, KOZHIKODE.
