Jammu & Kashmir High Court - Srinagar Bench
Mohammad Altaf Bhat vs K. K. Sethi And Another" Reported In ... on 5 April, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CIMA No.02/2018
CPC No.04/2018
Date of decision:05.04.2019
Shafi Ahmad v. Danish Renzu & anr
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Appellant(s): Mr. J. A. Kawoosa, Adv. with Ms. Humaira Shafi, Adv.
For the Respondent(s): Mr. M. Y. Bhat, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. A suit had been filed by the appellant herein before Principal District Judge, Srinagar on 07-12-2017 which came to be transferred to the court of Additional District Judge, Srinagar), for grant of following reliefs:
i) That the decree of permanent injunction decree in favour of the plaintiff and against the defendants perpetually restraining the defendants from releasing, telecasting placing on social media website or otherwise exhibiting themselves or through any representative/assign/agent releasing telecasting, exhibiting, viewing in private by placing on social media or in any manner whatsoever the film/movie/motion picture "half Widow" under said name CIMA No.02/2018 Page 1 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document or any other name or any trailer and brief version thereof or make its adaption reproduction whatsoever.
ii) To pass a decree for rendition of accounts in favour of the plaintiff and against the defendants to determine the amount collected/raised by the defendants by infringement of plaintiff's copyright and determine the amount payable by the defendants to the plaintiff and pass a decree for recovery/payment of the amount so determined.
iii) To pass a decree to assess the damages suffered by the plaintiff due to infringement of his copy right and pass a decree directing the defendants to pay the damages so assess to plaintiff.
2) According to appellant/plaintiff, he was entitled to reliefs supra precisely on the following counts:
i) That the plaintiff in the year 2012 authored a novel titled "Half Widow" published by Power Publishers Kolkatta in July August 2012. The novel was published in fall 2014 in a concise form in the shape of short story by an online magazine Kashmir.Org under the title "She". That the editor Kashmir.lit.Org on 22nd November 2013 through an e-mail introduced the plaintiff to the defendant No. 1 a film maker from Srinagar temporarily based in US. That the defendant No. 1 contacted the plaintiff on phone and had a brief conversation with the plaintiff. The plaintiff was informed that the defendant No. 1 had gone through the short story "she" and would love to include "Half Widow"
as fourth story in the film and the defendant No. 1 made a CIMA No.02/2018 Page 2 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document promise that the plaintiff would be credited as the main story writer on the screenplay along with proper credit on the screen. The defendant No. 1 was further conveyed that the title cover of the book may be used for publicity purpose with the plaintiff's permission. The plaintiff was assured that the plaintiff would be all along kept on board and involved during film making so that the justice was done to the subject matter.
ii) That the plaintiff through e-mail communication dated 27th
November 2014 was asked to give his written
consent/permission via e-mail permitting/authorizing use of short story and its development into a screenplay. The defendant NO. 1 signified his intention to meet the plaintiff on former's visit to the Kashmir early 2015.
iii) That the defendant No. 1 vide e-mail communication dated 7th December 2014 sent to the e-mail asked the plaintiff to sign the agreement titled "contract for services rendered." The plaintiff by the return e-mail communication of the same date sought some clarification including the meaning of alphabets TBD. The Plaintiff reply was responded by e-mail communication dated 8th December 2014 sent to the defendant No. 1 to plaintiff's e-mail. The plaintiff informed that the reimbursement to the plaintiff on account of use of his short story would depend upon the budget available to the defendants and therefore would be decided later and that TBD in the contract stood for "to be decided." The plaintiff was given liberty to take a print out of the contract sign it and scan it and thereafter forward it through e-mail CIMA No.02/2018 Page 3 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document to the defendant No. 1. T/he plaintiff on 8th December 2014 through two e-mail communications firstly informed the defendant that the plaintiff would "check and reply" and thereafter "Ok" signifying his willingness to sign the contract. The plaintiff accordingly signed the contract at Srinagar and therefore the contract was completed and executed at Srinagar with some terms and conditions. The defendant No. 1 through an e-mail communication dated 9th December 2014 to plaintiff sent the screen title of the film/motion picture "The Pashmina" indicating the name "Salma" as the character in the part/segment of the film based on the plaintiff's short story/novel. The defendants No. 1 and 2 in the contract acknowledged copyright of the plaintiff on the plaintiff novel "The Half Widow" published by power publishers Kolkata and its short story form titled "She" published by online magazine Kashmirlit.Org in all its dimensions including "paternity rights", Pecuniary rights, and "spec9ial right" as recognized under law.
iv) The contract between the plaintiff and defendant No. 1 took place at Srinagar. The plaintiff was waiting for different stages necessary for completion of film/motion picture to be crossed and its release when the defendant on 30th December 2016 sent an e-mail communication to plaintiff's email informing the plaintiff that the film "Pashmina" has progressed ever since the plaintiff and defendant No. 1 met. That the defendant was no longer using any content from the plaintiff's novel "The half Widow" in his script at all. The defendant No. 1 through email asked Ms. Neelofer Hamid defendant No. 1s Assistant/employee at defendant No. 2 CIMA No.02/2018 Page 4 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document business concern to get a NOC from the plaintiff. The defendant No. 1 on 6th January 2017 sent one more communication from defendants' e-mail to plaintiff's email with copy endorsed to Ms. Neelofer forwarding to her text of NOC requiring her to get it signed and executed by the plaintiff.
v) That the plaintiff though approached by defendants No. 1 and 2 for issuance of NOC refused to oblige the defendant No. 1 and 2 as the plaintiff was convinced and knew well that the film/motion picture was an exact adaptation of the novel "The Half Widow" and its short story form "She" and that the defendants statement made in Annexure F was false and frivolous and a bizarre attempt to wriggle out of the contract and to infringe plaintiff copyright in the novel "The half Widow" and its short story form "She" the right recognized under law. The plaintiff when contacted for issuance of NOC repeatedly warned the defendants that the plaintiffs was not ready to grant any NOC.
vi) That the plaintiff under bonafide belief that the defendants would desist from infringement of plaintiff's copyright, more so when defendants repeatedly insisted on NOC thereby giving an impression that without NOC the defendants would not be in a position to accomplish their illegal designed decided to wait till the defendants mend their way, abandon their plan to infringe plaintiff's copyright and in all fairness acknowledge that their venture was based on the said novel and shorty story.
Plaintiff however was aghast and surprised when a few CIMA No.02/2018 Page 5 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document days back the plaintiff was informed by friends in literary circle that the defendants in violation of plaintiff's copyright had made a film/ motion picture titled Half Widow i.e. the same title as the plaintiff novel, and based on the novel and its short story form and even placed its trailer on YouTube. The Plaintiff visited the website and was shocked to find that the film/motion picture to be released by the defendant's 1 and 2 is entirely based on the plaintiff's aforementioned novel and its short story form.
vii) That the plaintiff novel "The half Widow" published by power Publishers Kolkatta and its story form uploaded on online magazine Kashmmirlit.org under title "she" are intellectual property of the plaintiff within the meaning of law. The plaintiff therefore has copyright in the aforementioned novel and short story under the Bern Convention 1886 as revised from time to time, Universal Copyright Convention 1952 as revised in 1971 and the Copyright as original owner would include "paternity rights" "economic right" and "special right" and all other rights within meaning of aforementioned International Covenants, Conventions, Treaties and the provisions of the Copyright within meaning of above referred Covenants/law and in particular Section 51 of the Copyright Act.
viii) That the plaintiff as owner of the Copyright within the meaning of the Copyright Act 1957, is against afore-stated backdrop entitled to all the civil remedies in terms of the Act as also all the International Covenants and Conventions and therefore has a right to maintain the suit.
CIMA No.02/2018 Page 6 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document3) Alongside the suit, the appellant has also filed an interim application whereby Learned Additional District Judge, Srinagar vide order dated 07-12-2017 passed following directions:
".......Accordingly, subject to the objections and till next hearing non applicant/defendants are directed not to release telecast, exhibit, view in private or public or otherwise making public by placing on social media the film/movie/motion picture under name "half Widow". The non-applicant would however be at liberty to move the court earlier for the discharge or variation in case any ground is available to them. Applicant shall file an affidavit that any identical matter with regard to subject matter is not pending in any court or has been decided so far.
Plaintiff/applicant is directed to comply with the procedure prescribed under proviso to Rule 3 of Order 39 CPC."
4) The defendants submitted the written statement wherein they took the following plea as:
i) The suit is premature as the movie has not been telecasted yet as such how can the plaintiff claim synonmity with the content of his book as the script of the movie is altogether different the characters are different and number of documentaries/movie have been made on the subject till however none of them was questioned by the plaintiff.
ii) The present suit ought to be dismissed on the ground that the mandate of Section 51 Specific Relief Act has not been complied as in the present suit, it is clearly evident from the pleadings and from the documents which have been relief on by the defendants CIMA No.02/2018 Page 7 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document there is a contract interse parties to the suit.
iii) That there has been no contract whatsoever interse plaintiff and defendants with regard to Movie Half Widow however in order to perpetuate wrong the plaintiff is mingling the contract of Pashmina with that of Movie Half Widow which story is nothing but bundle of lies.
iv) That the present suit ought to be dismissed under order 7 Rule 11 as no cause of action accrued to the plaintiff as the movie in question has not been finalized as all the ingredients which are necessary for making up of the movie have not been complied as only the trailer of the movie have been released which prima-
facie suggests and makes it clear that the said movie is yet to be completed for its broadcast/telecast.
v) That the High Court of Delhi has already discussed the same issue in which the provisions of CPC, Trade and Merchandises Marks Act Designs Act, Copyright Act, IPC were invoked in which the said Hon'ble court has already dismissed the said case in which the matter was discussed for the reason that no merit in the case was found and dismissed the same with costs of Rs. 50,000/- to the defendants.
vi) That the non-joinder of necessary party as power publisher and editor should have been made party to the suit who should be brought in court to discuss content like occupational forces which according to their terms is secessionist and heinous offence for which both publisher and editor are liable to be prosecuted and they cannot disown their responsibilities under press and publication laws. Or it clearly evidences form the CIMA No.02/2018 Page 8 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document para there is non-joinder of necessary party hence the suit is liable to be dismissed on the count also.
vii) That it is amply clear that there was a contingent between the plaintiff and the defendants depicting therein the TBD meaning thereby to be decided, so the simple injunction suit cannot lie rather the plaintiff should have approached the Hon'ble court under Section 51 of Specific Relief Act which will mandate and govern the parties as there has been contract as per the story itself projected by the plaintiff in the said paras and there was contract for Pashmina and not "Half Widow."
viii) That the plaintiff in his pleadings and reply has submitted that the plaintiff of his own is deeming the so called agreement as contract for services rendered and the plaintiff should now that enforcing any service to be rendered the proper forum is the consumer forum and not the civil court more particularly when the plaintiff himself agrees that contracts stood for to be decided (TBD) and as such the contract is a contingent contract and has not been finalized.
ix) That the plaintiff has himself confused as to whether the contract have been executed at Srinagar or not as a matter of fact the defendants has never met the plaintiff in Srinagar whatever was done was done through e-mail from California and rest of the story pertaining to the Srinagar jurisdiction is false, frivolous and concocted. With regard to the NOC that was asked again through e-mail again from California from the plaintiff it is humbly submitted that for the movie Pashmina it has been found that the book of the plaintiff is of no better CIMA No.02/2018 Page 9 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document consequences however it has been said in the e-mails that the work of the plaintiff in his book has been inspiration and that will be screened as to the inspirational while making movie Pashmina as and when made and telecasted. The plaintiff is trying to intermingle the Pashmina series of four art movies and half Widow which is one of the series of Pashmina and not the Pashmina itself. The Plaintiff copy right is yet a huge mystery to the court as well as to the defendants as to what copyright he is referring to and on the other hand the defendants is before the Hon'ble court with Registration Certificate that proves that the Copy right of the Movie Half Widow is with the defendant's while demonstrate the truthfulness in the story of the defendants and the hotchpotch of lies with the story projected by the plaintiff.
5) After hearing both the parties, learned Additional District Judge, Srinagar has disposed of the application moved for grant of interim assistance, by order dated 23- 01-2018(hereinafter referred as impugned order) with the observation as:
"..... the nuisance complained of by the plaintiffs and which was yet to accrue was to fall in the category of private nuisance. The remedies for private nuisance are (1) Abatement (2) Damages and
(c) Injunction. In Order to obtain an injunction, it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both cannot be adequately compensated in damages. If the injury is continuous the court will not refuse an injunction because the actual damage arising from it is sight.
In the case in hand, it is not the case that the film has been CIMA No.02/2018 Page 10 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document released and infringement has been established but it is a case where infringement is apprehended , the infringement has not been committed at this stage and even if it is presumed that infringement is likely to happen but it is not so grave or inherently so dangerous or injurious that would call for granting injunction in favour of the applicant at this preliminary stage when the cause of action has not accrued to the applicant, the cause of action will accrue only when the film will be released so at this stage when the cause of action o has not accrued the injunction cannot be granted and if the non- applicants are allowed to release the film and if any injury is cause to the applicant then same can be compensated by way of damages and can be taken care of by the process which is known to the law. The pleadings raised by the applicant do not set out a case of such a nature as would induce this court to grant injunction at this stage when cause of action has not accrued to the applicant.
Keeping in mind the discussion as made hereinabove as the film has not been released as yet so at this stage it cannot be said as to whether the copyright of the applicant has been infringed or not furthermore the alleged infringement has not taken place so a such at this stage the balance of convenience tilts in favour of the non- applicants and if they are restrained from releasing the film then they be put to such a loss which cannot be compensated by way of damages. Since the alleged infringement has not taken place at this stage so if at this stage if the non-applicants are restrained from releasing the film it will cause irreparable loss to the non-applicants because if tomorrow at the conclusion of the trial it is proved that the film is not the pirated copy of the Novel then the loss which may be caused to the non-applicants cannot be compensated by way of CIMA No.02/2018 Page 11 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document damages but on the other hand if the non-applicants are allowed to release the film but subject to some reasonable conditions such as that in case after its release it is proved that the film is based on the Novel "Half Widow" complied by the applicant then (a) non- applicants can be directed to maintain and submit details of the account of profits so made from the release of the film (b) compensate the applicant adequately (c) pay the damages to the applicants or (d) pay royalty to the applicant. So keeping in mind the discussion as made hereinabove the non-applicants are allowed to release the film but subject to conditions that they shall file an undertaking before this court to the extent that they shall submit entire accounts of the profits/earnings made from the release of the film to this Court and shall file undertaking to the effect that in case the film produced by the non-applicants is proved to be based on the Novel "half Widow" authored by the applicant then they shall be liable to pay the damages sand pay the royalty to the applicant. The undertaking to this effect shall be filed within a week from the date order is passed and upon filing of the undertaking the earlier order of restraint shall stand vacated but in case the undertaking is not filed within the stipulated time of one week the non-applicants shall cease to have the right to release the film. With these observations the interim order dated 07-12-2017 whereby non-applicants were directed not to release, telecast, exhibit, view in private or public or otherwise making public by placing on social media the film/movie/motion picture under name "Half Widow" Shah Stand vacated."
6) Aggrieved by the order dated 23-01-2018, the petitioner through medium of this appeal, challenges the same on the following grounds:
CIMA No.02/2018 Page 12 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this documenti) That the order impugned passed by the Court below is against the facts and law, therefore, deserves to be set aside.
ii) That the court below has completely failed to appreciate the simple fact that the work/novel of the appellant is intellectual property of the appellant and the same has been reproduced by the respondents in their film/motion picture even with the same title "Half Widow"
thereby infringing the Copyright of the appellant. This basic fact, over which the whole controversy revolves around, has completely been ignored by the court below. The appellant had placed enough material on record to establish the fact that there is reproduction of his work in material form and similarities in the theme of the trailer of the film uploaded by the respondents on YouTube Video Streaming Portal and the novel authored by the appellant, yet the court failed to appreciate the controversy in its right perspective.
iii) The Copyright is a legal right created by the Copyright Act 1957 that grants the creator of an original work exclusive rights for its use and distribution. The author of a literary work/ novel in the present case and anyone duly authorized by him have exclusive right to use the work, copy of reproduce it in any form. The appellant in terms of Section 22 and other provisions of Copyright Act 1957 has Copyright over the novel in question. The appellants' Copyright as a matter of fact is admitted by the respondents by asking for his permission to use the novel and thereafter asking for his NOC. It is not a case where the respondents have made a film and it later dawns on the appellant that film is based on his novel and he approached the Court with the civil suit. Here is case where respondents were well aware that he appellant has written a novel under the name "The Half Widow" and that they would make film CIMA No.02/2018 Page 13 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document based on the novel and formally sought his permission, entered into the contract and associated him with post contract activities in connection with the film. The appellant's case therefore is as borne out by record on the file admitted by the respondents. On this court also, the impugned order being contrary against the facts and law deserves to be set aside.
iv) That the trial court has failed to recognize the special rights that are available to the appellant in terms of Section 57 of the Copyright Act 1957.
v) That the trial court in the impugned order has held that before the appellant can claim for infringement of his Copyright, the film/Motion Picture is required to be released and also required to be seen and watched by the masses and at this stage when the film is yet to be seen and watched, it cannot be said with certainty or authenticity the Film/motion picture is pirated/copied version of appellant's novel "The Half Widow". This finding given by the trial court is again based on fallacy and imagination beyond this world.
The trial court has completely ignored the fact that the appellant has placed on record the trailer of the film/motion picture which was downloaded from YouTube in good faith with the only purpose to support the averments made by the appellant in this behalf. It would otherwise be impossible for the appellant to bring the factum of release of trailer of film through YouTube. The fact has been completely ignored by the trial court while passing the impugned order.
vi) That the trial court has failed to appreciate that by allowing release of the film without credit to the appellant due to him as author of the film in the title of the film would be impermissible and amount to CIMA No.02/2018 Page 14 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document rewarding the respondents for the infringement of appellant's Copyright committed by them. Similarly, the release of film without due credit to the appellant on which the novel is based shall expose the appellant to irreparable injury inasmuch as the appellant cannot be compensated after the film is released and viewed by the public without the appellant having been given credit for the authorship of the novel on which the film is based.
7) This court vide order dated 01-02-2018 passed an interim assistance in favour of the appellant whereby, besides staying impugned order, position as it existed prior to the passing of impugned order, was directed to be maintained. Later on contempt petition bearing CPC 04/2018 was filed thereafter by the appellant wherein it was set forth that:
(1) The order dated 01.-02-2018 has been passed by the Court after hearing the counsel for the parties and the said order has been served upon the contemnors against the proper receipts;
(2) The contemnors have clear and absolute knowledge about the court order, as such, they were under a bounden duty to respect the orders of the Court by not releasing, telecasting, exhibiting, viewing in private or public or other4wise making public by placing on social media the film/movie/motion picture under the name "Half Widow". The contemnors in utter disregard to the order passed by this Court whereby position as it existed prior to the passing of the impugned order has been directed to be maintained, have screened the film/movie/motion picture "Half Widow" on 11th of March 2018 at Dick Clark Production Inc. 2900 Olympic Blvd Santa Monica, CA 90404;
(3) The contemnors had released the premier of the film "Half Widow" in CIMA No.02/2018 Page 15 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document 2017 South Asian International Film Festival held on 16 th December 2017 despite being aware of the fact that the trial court ordered them not to release, telecast or view in public or in private the film/movie/ motion picture "Half Widow". The petitioner in this regard had filed contempt proceedings before the trial court and during the pendency of the contempt proceedings, the contemnors again screened the premier of the film "Half Widow" at 10th Jaipur International Film Festival-
JIFF 2018 from 6th to 10 January, 2018;
(4) The contemnors have not even removed the trailer of the film "Half Widow" from the video sharing website YouTube (Video Hosting Service) and the said trailer of the film "Half Widow" continues to be streamed on the YouTube despite complaint of infringement. The petitioner has made series of email communications to the YouTube administration for copyright infringement and removal of the infringing content from the YouTube video sharing portal;
(5) The contemnors despite clear and absolute knowledge of the Court order, have willfully, deliberately and intentionally observed the order of this Court in breach by screening the film/movie/motion picture "Half Widow" on 11th of March 2018 at Dick Clark Production Inc. 2900 Olympic Blvd Santa Monica, CA 90404;
(6) The disobedience is willful, deliberate and intentional and by their conduct, the contemnors have attempted to bring down the esteem, reputation and the honour of this Court. The interests of justice warrant that the contemnors be punished severely, so that the sanctity of rule of law is restored.
CIMA No.02/2018 Page 16 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document8) Statement of facts has been filed by the respondents wherein it is stated that:
i)The petitioner has alleged that the violation has taken place as the film has been screened in March 2018 at Santa Monica which is absolutely false and misleading statement. The event projected was not a film production event but a film promotion even and the replying respondent No. 1 in the said event joined therein to discuss the socio economic issues related to the film.
ii) The second aspect raised is that the premiere of the movie/film has been uploaded on YouTube. It is humbly submitted in this behalf that the petitioner has again mislead this Hon'ble court.
The premiere is available on the site since two years and has never been directed to be removed therefrom. The Hon'ble court directed that he position shall not be disturbed meaning thereby that the petitioner has himself committed grave contempt of court by trying to get the trailer removed from social media. The premiere even otherwise is not the movie but only a few minutes' introduction to the theme of the movie and does not infringe any of the rights of the petitioner.
iii) that the petitioner has even otherwise not arrayed necessary suit as respondents in the appeal and in the suit. The singer of the song projected in the premiere Sonu Nigam has not been arrayed as party and neither has YouTube been arrayed as party and thus the appeal and contempt proceedings deserves to be dismissed on this sole ground.
9) Response to statement of facts have been filed by the appellant wherein it is stated that:
i)The appellant as author of the novel "The Half Widow" holds it as intellectual property within meaning of law and has Copyright in the novel and its short version published under the title "She" by online Magazine Kashmirlit.Org; the right includes "Paternity right", "economic rights" and "special rights" as recognized under the Copyright Act 1957.
ii) The respondents while admitting that the film "Half Widow"
was screened in March 2018 at Santa Monic make an effort in vain to escape consequences of violation of Court order by CIMA No.02/2018 Page 17 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document insisting that the screening was not "a film production event"
but just "a film Promotion Event." The respondents made an erroneous plea that the ad interim order in force on the date the film was screened in March 2018 at Santa Monica only prohibited the release of film that in the first place at the announcement placed on the social media would reveal the event was public viewing of the film Half Widow at Los Angeles organized by the respondent No. 2 with fund raising as one of the motives, secondly the ad-interim order in force on the ate film was screened at Los Angeles i.e. 11th march 2018 was snot restricted to only release of the film but directed the respondents not to "release, telecast, exhibit, view in private or public" or otherwise make public by placing on social media the film. The screening of the film on 11th March 2018 therefore comes within the ambit of ad-interim order dated 11th march 2018 hence violated it altogether.
iii) that uploading trailer of the film on YouTube itself amounted to violation of the appellant's Copyright protected under law and the appellant was well within his rights to seek its removal as its continued placement/streaming on YouTube under the Copyright Act as also international Covenants Conventions and Treaties.
10) Mr. Kawoosa, learned counsel for the appellant laid emphasis in contending that the Court is required to dispose of the contempt petition before the appeal is taken for consideration on merits, which was, however, resisted by the other side on the count that merit of both main appeal as well as contempt petition is to be considered in the light of the arguments to be advanced by the parties. Accordingly, the learned counsel for the appellant as well as counsel appearing for the other side were heard.
11) Learned counsel for the appellant contended that the initial order was passed on 07.12.2017 by the learned trial court wherein direction supra was granted, which later on was vacated by impugned order. On an appeal before the Court, interim assistance was granted which was required to be respected by the other side but the CIMA No.02/2018 Page 18 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document acts attributed to the respondents in the contempt petition are indicative of the fact that they have wilfully disobeyed the court direction. Reliance in this regard is placed on the judgment of the Hon'ble Apex Court in "Dr. H. Phunindre Singh and others vs. K. K. Sethi and another" reported in (1998) 8 SCC 640. He also made reference of page 20 of the trial court judgment and some other relevant paras where from, according to him, substance in the argument of appellant is, prima facie, deducible. Reliance was also placed on the judgment of the Hon'ble Apex Court in "Prithawi Nath Ram vs. State of Jharkhand and others", (2004) 7 SCC 261 and so canvassed that the vacation of interim assistance would not be a good ground for justifying the disobedience. The respondent, having clear and absolute knowledge of the Court order, could not display the trailer of the film or screen motion picture/movie "Half Widow" on 11th of March 2018 at Dick Clark Production Inc.2900 Olympic Blvd Santa Monica, CA 90404. Annexure-C3 and Annexure-C4 to the contempt petition and other related documents generated from computer and annexed with the contempt petition are being relied upon by the learned counsel for the appellant.
12) While reverting back to the merits of the appeal and the legality of the order passed by the learned trial court, learned counsel for the appellant, while making an endeavour to substantiate his arguments and placing reliance on the below mentioned judgment, contended that the order impugned was bad.
1. N. T. Raghunathan and another v. All India Reporter Ltd.
(AIR 1971 Bombay 48);
2. Penguin Books Ltd. England v. M/S India Book Distributors and others (AIR 1985 Delhi 29);
3. Pranda Jewelry Pvt. Ltd. And others v. Aarya 24 Kt. And others (AIR 2015 Bombay 157);
4. Midas Hygiene Industries (P) Ltd. And another v. Sudhir Bhatia and others, (2004) 3 SCC 90;
CIMA No.02/2018 Page 19 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document5. R. Madhavan v. S. K. Nayar (AIR 1988 Kerala 39);
6. Prithawi Nath Ram v. State of Jharkhand and others, (2004) 7 SCC 261
13) It is also being submitted that the learned trial court ought to have first marshalled the similarities etc. of the film on which the appellant had the copy right and CD of which was available before the learned trial court, with the film as produced by the respondent and then examined the scope of issuance or withholding of interim assistance. Non-observance of the same, according to learned counsel, renders the order illegal. Judgment of the Hon'ble Apex Court in "R. G. Anand v. M/S Delux Films & ors" (AIR 1978 SC 1613), is also being relied on to infuse force to the contentions so raised
14) It is also being contended that the damages, as has been observed by the learned trial court, could not be an adequate remedy in case later it is found that there is violation of copy rights of the appellant, was fallacious as the respondents too could be compensated in case they are enjoined from proceeding with the display or screening of the film. The documents available on record which include emails received by the respondent and of which reply was also sent to the appellant, clearly demonstrate that the appellant herein had a copy right over the film "Half Widow"
and so any production made while having basis in the said novel written by the appellant herein was violative of his rights and same was actionable at law necessitating interim assistance to be granted in favour of the appellant. On weighing the relevant convenience of the parties in the backdrop of equity, the issuance of interim assistance was also warranted, according to the learned counsel for the appellant.
15) According to learned counsel for the appellant, grant of injunction is a rule whenever there is an infringement of trademark or copy right. Reliance in particular CIMA No.02/2018 Page 20 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document is placed on the judgment of Hon'ble Apex Court in "Midas Hygiene Industries (P) Ltd. And another v. Sudhir Bhatia and others, (2004) 3 SCC 90. According to learned counsel, the non-application of mind on the part of learned trial court is reflected from the assertion made in the impugned order about illustration recited therein about the tutor and the student as the position referred in the judgment was inverse of what is quoted by the learned trial court. The violation, according to learned counsel, had been made by the tutor and not the student.
16) The impugned order is erroneous, as is being further submitted, for the failure on the part of learned trial court to recognize the right of the appellant in intellectual property in terms of the provision of Copyrights Act (in particular Section 57 thereof). The forbearance on the part of learned trial court to grant interim assistance is to encourage the pirated copy to be circulated in utter violation of the rights of the appellant. The facts and other grounds as reflected in the memo of appeal and suit have been reiterated.
17) Refuting the contentions raised on behalf of the appellant, both in contempt proceedings as well as main appeal, learned counsel appearing for the respondents submitted that the respondents herein have not disobeyed any interim direction, reference of which is found in the petition presented one behalf of the appellant herein. He has conceded that in case there is deliberate violation of any direction passed by the Court, the Court may take an appropriate action in the matter. The work on which the appellant herein claims to be having the copy right was in no case copied by the respondent for preparation of the film. The event referred to have taken place at Dick Clark Production Inc.2900 Olympic Blvd Santa Monica, CA 90404 was a promotion event and was also for discussion of socio economic issues related to the film. The discussion over the film with interested experts of the filed was in no way disobedience of the Court direction. The premiere had been available CIMA No.02/2018 Page 21 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document on YouTube since two years. There was no direction for its removal and consequently disobedience could not be inferred. The premiere/event, according to him, as submitted in the statement of facts, is not a movie but only a few minutes' introduction to the theme of the movie. One more plea raised is that interim order was subject to objections. Later an application was filed for vacating interim direction dated 01.02.2018. It is also submitted that the trial court, in terms of order dated 07.12.2017, respondents herein were directed not to release, telecast, exhibit, view in private or public or otherwise make public by placing on social media the film/movie/motion picture under the name "Half Widow", which, according to learned counsel, was not, in any way, observed in breach by the respondent herein.
Even it is not the case of appellant herein that the film/movie/motion picture was so released, exhibited etc.
18) Replying the contention raised about the merits of the case, Mr. Bhat, learned counsel for the respondent herein, has submitted that the judgment of the Hon'ble Apex Court in "R. G. Anand v. M/S Delux Films & ors" (AIR 1978 SC 1613), relied by the other side has interpreted the law as was prevalent under earlier Act i.e. Copyright Act, 1914. It discusses the aspects of Copyright about stage play and film. The general legal principles, however, can be deduced from it on the infringement of copy right in case of a film made of somebody's artistic work. The new Act, as is being further submitted, imposes certain restrictions which were not existing in the earlier Act. The new Act permits invasion of copyright under Section 13(3) of an artistic work by incorporating the same in a feature film. The judgment of the Hon'ble Apex Court in Krishika Lulla's case reported in (2016) 2 SCC 521, while following judgment in R.G. Anand's case, has held that there cannot be infringement of copyright, in case of user of title and infringement of copyright claimed on the basis of content and material of the artistic work only. The judgment of Hon'ble Apex Court in "Midas Hygiene Industries (P) Ltd. And another v.
CIMA No.02/2018 Page 22 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this documentSudhir Bhatia and others, (2004) 3 SCC 90, was not relied on by the appellant herein before the trial court but be it so, it deals with copyright of trademark which is different from copyright of a literary, dramatic, musical and artistic work, if reproduced in the form of a feature film. Further explaining the same, learned counsel for the respondent herein submitted that under the Trade Mark Act, a trade mark of business is being registered for conducting a particular business under the title of such trade mark and in the market that title of trade mark in the field of business has significance and value and that is why such trade mark cannot be used by any other person and so necessarily trade mark is to be registered. The trade mark cannot be confused with artistic work, according to learned counsel.
19) Reference of emails and agreement, according to learned counsel for the respondents herein, has no relevance in the present case because as per said emails and agreement, the case put forth by the appellant/plaintiff is that the respondent had to produce feature film under the title "Pashmina" by using part of the novel "Half Widow" i.e. 4th story title "She". The material relied on by the appellant itself sounds that the respondents herein had not agreed to act upon the terms stated by the appellant to be agreed as the decision in this regard was to be arrived at in future. The feature film has not been produced on the material, of which reference is found in the plaint. There being absence of concluded contract, no cause for bringing the lis was available with the appellant/plaintiff. It is also pleaded that the appellant herein had in the work prepared by him questioned the accession of Jammu and Kashmir State with India and some statements of Jawahar Lal Nehru and U. N. Resolutions are also referred in the novel. The team which was assigned the work to go with the production of film decided not to use the content of the appellant's novel as it was likely to create trouble. The book referred to by the appellant herein was not registered in the State of J&K and for this reason, according to learned counsel, it would be a forum at Calcutta which had to be approached for redressal of CIMA No.02/2018 Page 23 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document grievances if recognized in law. The feature film with title "Half Widow" according to learned counsel, had been produced by various producers from 2007 and till date near about dozens of such films and novels are available in the market. Use of title for the film which has been adopted by the appellant for his book is not, in any way, violating rights of the appellant herein. The averments of the plaint are stated to be vague as the appellant has not been able to convey as to how and from whom he came to know about the contents of the trailer. Trailer of the film, according to learned counsel, never discloses the entire story line and it only brings to fore the idea of the film. Use of idea, according to learned counsel, cannot lead to infringement of copyright in light of the law laid down by the Hon'ble Apex Court in "R. G. Anand's" case. Similarities or dis-similarities of fundamentals of an artistic work are very pertinent and it is only then an impression can be gathered as to infringement or otherwise of a right. The criteria to be applied, according to learned counsel, to frame tentative opinion is that a viewer of the film should get an unmistakable impression that the subsequent work appears to be a copy of the original. The feature film produced by the respondent has not been viewed by public or any person and basics of the film have not been viewed and visualized, therefore, question of comparison of the same with the novel could not arise, is also being submitted. It would be only after release of feature film and if same is viewed by general public and thereafter if a prudent person while having comparison of both the works frames an impression above referred that the question for examination may arise as to the invasion of the copy rights.
20) Explanation to Section 51 of the Copyright Act, which, according to the learned counsel for the respondent herein was not given thought by the learned trial court, is also without basis as page 40 of the judgment itself reflects learned trial court being alive to the said issue and having considered the matter while viewing this aspect also. The observations of the learned trial court in this regard are that the CIMA No.02/2018 Page 24 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document appellant is required to prove that his work was registered and was reproduced by the respondent herein as contemplated in Section 51 and if pleadings in this regard were absent, Section 51 would have no relevance.
21) The instance of Ph. D scholar and his tutor referred to in AIR 1990 Rajasthan, as being submitted by the learned counsel, is governed by University Statute. The said statute recognizes the right of Ph. D scholar over the work because of personal skill of said scholar. The students are not required to publish their thesis under Registration of Books Act or under the provisions of Copyright Act but have privileged rights with regard to their thesis which is being treated as personal research work under the relevant Statute of the University.
22) According to learned counsel for the respondent, the observations of the learned trial court that the appellant herein has neither filed the script of his novel nor has he chosen to produce script of the film to be released by the non- applicant/respondent herein, is an answer to the issue raised by the appellant about the trailer, CD of which has been produced before the learned trial court. The Court could not and more particularly at initial stage become a witness to the points that would have emerged on visualising both the works in question as only prima facie satisfaction was to be recorded.
23) Some more points raised by the learned counsel are:
(1) The suit is not maintainable because the feature film produced by the respondent is not as yet released and no comparison of film and the novel is possible at this stage;
(2) The trailer/premier of the feature film depicts and discloses the story line/contents of the film. No infringement of copyright can be claimed merely on the basis of idea which legal position is settled in R. G. Anand's case.CIMA No.02/2018 Page 25 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document
(3) The alleged contact and e-mails as projected in the suit show that the plaintiff had authorized to make feature film "Pashmeena" by using 4 th story of his novel i.e. "She". While reading the entire suit, it is admitted by the plaintiff that the respondent has neither made feature film "Pashmeena" nor he has used his 4th story "She" for making feature film.
He claims that the novel has been used and feature film is based on entire novel which he suggests to have been done on seeing the trailer of the film. Therefore, admittedly the emails and the agreement have not been acted upon or violated by the respondent.
(4) The book "Half Widow" written by the appellant is not registered under Section 44 and 45 of Copyright Act and also under Registration of Books Act, as applicable in West Bengal, because book is published in West Bengal and contents of the book reveal that courts of West Bengal shall have jurisdiction, as is evident from the front page of the book. On the other hand, film produced by respondent is registered with the concerned authority which registers the films produced by private producers.
(5) In terms of emails and contract projected in the suit, it is specifically mentioned that the Courts of California shall have jurisdiction to try a suit in case of any dispute and whether the said contract is final or not because it contains conditions that decision is to be taken in view of (Decision TBT) and subsequently decision was taken after going through the contents of the novel of appellant that no film can be produced on the basis of said novel which is absolutely illegal and would not be accepted and entertained by the concerned produced, directors and artists because CIMA No.02/2018 Page 26 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document the novel written by appellant contains reference of some speeches and communications dealing with dispute of accession of Kashmir.
(6) The very important issue to be considered by this Court is as to whom the irreparable loss will be caused. It is submitted that in case the respondent will not be permitted to release the film till disposal of the suit, then by the afflux of time and feature film will lose the significance of the present time and if the film is released after a pretty long time, then the producers and artists of the film will suffer huge loss and they will not be able to earn by releasing the said film after long time. But if the film is released at present, then the same will be able to earn very good profits and investment made by producing film by the production team can be compensated. On the other hand, the appellant who has not invested a single penny in production of the film will not gain or lose anything, if the film is released after pretty long time. In case stories of old films will be reproduced at present, it will not be possible that such films can be in a gain in present times because a feature film is being produced as per demand of the public at current times and then only it becomes successful. Therefore, the delay in releasing the feature film causes huge and irreparable loss to the respondent only which cannot be compensated or gained after passage of time and if the release of feature film is delayed further then the said feature film will lose its significance by afflux of time and that irreparable loss cannot be compensated to the respondent in any way at that point of time.
24) Some of the relevant observations of the Hon'ble Apex Court in R. G. Anand's case relied on by the learned counsel are:
CIMA No.02/2018 Page 27 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a CIMA No.02/2018 Page 28 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
After having gone through the script of the play and the film we are inclined to agree with the opinion of the Courts below. We have already pointed out that mere similarities by themselves are not sufficient to raise in inference of colourable imitation on the other hand, there are quite a number of dissimilarities also, for instance:
(i) In the play provincialism comes on the surface only when the question of marriage of Amni with Chander crops up but in the picture it is the starting point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails as a result' thereof Anand has to masquerade himself as a Madrasi. This would, therefore, show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which is not developed or stressed in the play.
(ii) Similarly, in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance performance of Janaki and Anand is staged that the identity of the two (families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play.
(iii) In the film there is no suicidal pact between the lovers but only a suicide note is left by Janaki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect.
Furthermore, while in the play Amni and Chander get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janaki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janaki's real identity is disclosed and Subramaniam also finds out that his daughter is alive.
(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families, but in the film there are three CIMA No.02/2018 Page 29 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram. D.
(iv) The film depicts the evil of caste ridden society and exposes the hollowness of such a society when, in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play.
(v) The film depicts another. important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplus age or embellishments in the story of the film but are important and substantial parts of the story.
The effect of the dissimilarities pointed out above clearly go to show that they tar outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play, is hardly of any significance because the name of a particular person cannot be the subject matter of copyright because these are common names.
After careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiff.
25) I have given my thoughtful consideration to the material before me. On examination of the impugned order, it is clear that the learned trial court has declined to grant the interim assistance in favour of the appellant herein while taking note of various statutory provisions in this regard including Section 2(c), 2(m), 13, 14, 44, CIMA No.02/2018 Page 30 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document 51, 55 and 62 of the Copyrights Act and the general principles applicable regarding grant or refusal of injunctions in case of violation of copyright is pleaded. It has also referred to the principle of law laid down by the Hon'ble Apex Court in S. M. Dyechem, R. G. Anand and Chatrapathy Shanmugham's case. It has also taken view of the fact that the pleadings on which breach of infringement is pleaded by the appellant do not contain the material particulars as required in terms of the statute, of which reference is also found hereinabove in the argument of learned counsel for the respondent. Similarities and dis-similarities have not been outlined nor it shown as to how infringement can be deduced when the work averred to have been produced by the respondent herein was yet to be watched by masses and the audience. It has also referred that since the film had not been released so no injury could be inferred. It has also referred to the principle regarding grant of injunctions.
26) In the light of above arguments, the primary question, as submitted by the learned counsel for the appellant, is to examine whether the respondents have exhibited wilful disobedience of the order dated 07.12.2017 which stood revived in view of the order passed by this Court on presentation of the appeal. It has already been noted herein that the respondent has stated that there was no occasion to plead for such violation in view of the fact that even the appellant himself admits film having not been visualised, exhibited etc.
27) The fact remains that it is an unqualified duty of every person, against or in respect of whom an order is passed by a court of competent jurisdiction, to obey it unless the order is discharged. This rests on the broader application of the principle that courts of justice must not be deflected or interfered with and those who strike at it, strike the very foundation of the society. The order passed and which is expected to be obeyed should be unambiguous in its terms and it cannot be stretched to such an extent which a person with ordinary intellect would not conceive or comprehend.
CIMA No.02/2018 Page 31 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this documentIt is noted already hereinabove that the respondents were directed not to release, telecast, exhibit, view in private or public or otherwise marking public by placing on social media the film/movie/motion picture under name "Half Widow". The disobedience is attributed to them for organizing an event at Los Angeles, California by special LA screening and Dinner Fundraiser for "Half Widow".
28) In the statement of facts, of which reference is made hereinabove, it is specifically contended that the film was not at all screened or displayed for being seen by any person. The event was not a film production event but a film promotion event and to discuss socio-economic issues related to the film. In such view of the situation, it is difficult to lay basis ex-facie for opining that the respondent herein has indulged in an act which can be viewed as disobedience of the court direction referred above. To hold the conduct of respondents herein being contumacious, satisfaction needs to be record that film/movie/motion picture was telecasted, exhibited/viewed, in public or private; and is same being a copy of intellectual work of appellant herein. The judgment of Supreme Court in R. G. Anand's tersely lays down the position of law with regard to copyright as it existed prior to the enactment of new Copyright Act. It also makes clear one of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. Thus there has to be clear and cogent evidence to prove the violation of the court direction and so of the copyright. For framing proper conclusion, examination of the appellant as a witness and any other person/s thereafter he may chose is required. Further access to material which was exhibited or put for visualisation is also needed. The respondents would have right to cross examine the witnesses if any produced by the appellant hereinafter and also right to produce their evidence to controvert same.
CIMA No.02/2018 Page 32 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document29) Indian Courts have taken note of the principle of law laid down in "Hadkinson v. Hadkinson CA ([1952] P 285). by House of Lords as to whether the merit of main matter would be examined or not when a party alleges and order passed by the Court has been observed in breach. Observation made in the judgment in "RE SWAPTRONICS LTD" [1998] ALL ER (D) 407, have been relied on by their Lordships in "Hadkinson v. Hadkinson". Lord Denning Justice while framing his opinion in the matter in the background of the law, as could be gathered from various cases in this regard, has observed as under:
"The Court would only refuse to hear a party to a cause when the contempt impeded the course of justice by making it more difficult for the Court to ascertain the truth or to enforce its orders and there was no other effective means of securing his compliance. The Court might then in its discretion refuse to hear him until the impediment was removed or good reason was shown why it should not be removed.
30) This principle has been noted with approved in "Gogo Rani Versus Ranjinder Singh and Others" (Delhi High Court), "Lakhbinder Singh Versus Mahinder Singh" (Calcutta High Court) and "Prestige Lights Limited Versus State B.O.I"
(Supreme Court)."
31) Having regard to the fact that the material available before me is not in itself sufficient to infer violation of direction dated 01.02.2018, the applicant/appellant is directed to produce the evidence aforesaid, to enable the Court to determine the plea of disobedience properly. However, proceeding in the matter in this way is not treated a handicap to examine the main matter. The main matter is accordingly taken up for consideration.
2. The next question thus to be determined herein is about the scope for grant or withholding of the interim assistance and whether the learned trial court has CIMA No.02/2018 Page 33 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document exercised discretion vested in it capriciously or illegally. It needs to be underlined herein that their lordships of Hon'ble Apex Court in "Wander Ltd and another v. Antox India P. Ltd, reported in 1990 (Supp) SCC 727 and "Skyline Education Institute (India) P. Ltd. v. S. L. Vaswani", 2010 (42) PTC 217 (SC) have held that the discretion vested in trial court for grant or withholding of the interim assistance should not be ordinarily interfered with unless the appellate court is of the view that the learned trial court has exercised the discretion in a perverse manner. Proper herein it would be to recite the observations "The appellant court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
32) While having the same in view, it thus is to be examined whether learned trial court had, in any manner, erred in appreciating the matter for grant or withholding CIMA No.02/2018 Page 34 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document of the interim assistances to the extent that the perversity can be attributed to it necessitating its reversal by this Court.
33) One of the contentions raised on behalf of the respondent is in case appellant herein had stemmed his right on the agreement, of which, according to him, base can be found in the communications/emails, then such agreement should qualify to be a contract capable of enforcement and having vested the parties with certain rights and obligations. It has been rightly pointed out by the learned counsel for the respondent that the agreement had not matured into a contract and so no rights and obligations could be inferred to have vested in the parties and furthermore the parties till conclusion of the contract could withdraw from the understanding and the arrangement referred in the communications/emails. It is true that only such an agreement which is capable of enforcement can be specifically enforced and in case an injunction is sought on the basis of some contractual relationship, the party seeking such assistance is also duty bound to show that the said contract could be specifically enforced in terms of provisions of the Specific Relief Act. This, as already noted by the learned trial court, being not present in the case in hand, there was no scope for grant of an interim injunction. Furthermore, the provisions of the Copyrights Act referred in the arguments of the learned counsel for the parties have been taken note of by the learned trial court and thereafter tentative opinion framed there being no scope for grant of injunction. The observations of their lordships in R. G. Anand's case have been in particular taken note of by the trial court. This Court cannot be unmindful of the fact that the appellant herein has not been able to point out similarities or other points required to be displayed to have an impression that the artistic work prepared by him has been copied by the respondent herein in order to have complete cause of action to him and rightly observed by the trial court that the appellant herein was required to show tentatively this being the situation. One of the principle factors for withholding the interim assistance has been that since CIMA No.02/2018 Page 35 of 36 MOHAMMAD ALTAF BHAT 2019.04.08 10:29 I attest to the accuracy and integrity of this document the film produced by the respondent is yet to see the light of the day, invasion of copyright of the appellant could not be readily inferred.
34) The learned trial court has rightly taken care of the interests of the appellant herein by insisting other side to file an undertaking to the extent indicated therein regarding submission of entire accounts of profits/earnings made from the release of the film. I am, accordingly, of the opinion that no inference is warranted for setting aside the order impugned.
35) For what has been stated above, the appeal is held liable for dismissal and is, accordingly, dismissed.
36) Trial court record along with copy of this order be sent back.
37) Contempt matter be put up for proceeding as per above terms.
(Rashid Ali Dar) Judge Srinagar 05.04.2019 "Bhat Altaf, PS"
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