Kadhaas Untold Private Limited & Vishnu Venukuttan Pillai v Sudhas V, P. D. Prasad, Muhammed Mustafa, Nikhil, Abdul Vahid K.T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** **FAO NO. 61 OF 2021** **AGAINST THE ORDER DATED 30/07/2021 IN I.A.NO.03 OF 2021 IN OS 32/2021 OF DISTRICT COURT - VI, ERNAKULAM** ## **- - APPELLANTS/RESPONDENTS 1 2/DEFENDANTS 1 2:** - **1 KADHAAS UNTOLD PRIVATE LIMITED DOOR NO.367/8-3, SREESLYAM, THANDACHILEZHATHU, PATTATHANAM, MUKUNDAPURAM P.O., CHAVARA, KOLLAM-691 585. REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 VISHNU VENUKUTTAN PILLAI, MANAGING DIRECTOR, KADHAAS UNTOLD PRIVATE LIMITED, DOOR NO.367/8-3, SREESLYAM, THANDACHILEZHATHU, PATTATHANAM, MUKUNDAPURAM P.O., CHAVARA, KOLLAM-691 585.** **BY ADVS. B.G.HARINDRANATH ANANDAPADMANABHAN UNNIKRISHNAN SHERYL ELIZABATH SEBASTIAN** ## **RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 6/PLAINTIFF & DEFENDANTS** ## **3 TO 6:** - **1 SUDHAS V, CHALILPARAMBIL HOUSE, MALAPARAMBA P.O., KOZHIKODE-673 009.** - **2 P.D PRASAD, FLAT NO.379, ROAD NO.82, FILM NAGAR, HYDERABAD, TELUNGANA-500 033.** - **3 MUHAMMED MUSTAFA, NAVALIPARAMBA, NETHAJI ROAD, THENJIPPALAM P.O., MALAPPURAM-673 636.** - **4 NIKHIL, 5/102, AMBALPURAY VEEDU, PEREUVALLOOR P.O., MALAPPURAM-673 638.** **FAO NO. 61 OF 2021 2** **5 ABDUL VAHID K.T., 17/112, KAZHUNGUMTHOTTATHIL PANTHOTTIYIL HOUSE, PARAMBIL PEEDIKA, MALAPPURAM-676 317.** **BY ADVS. LATHEESH SEBASTIAN SANDHYA R.NAIR M.K.MUFEED PRABISHA T.P. T.SUKESH ROY MUHAMMED YASIL DEEPA JOSE GEORGE G.SREEKUMAR (CHELUR)** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON** **03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO NO. 61 OF 2021 3** ## **JUDGMENT** The release of a movie by name “Kappela” and re-making of it in Telugu language was sought to be restrained by maintaining a suit for injunction simplicitor by the plaintiff and obtained a temporary ex parte injunction against the defendants 1 and 2 and other defendants including the persons, who were entrusted with the work of re-making in Telugu language. The plaintiff's claim in the suit that he is one of the four script writers of the movie and hence his name should find a place in the title of the movie. The trial court after hearing the plaintiff issued an ex parte injunction as sought for by the plaintiff, which is extracted below for reference: _“Heard the petitioners counsel._ _Perused the affidavit in support of the petition as well as the documents. I am satisfied that a prima facie case is made out against the respondents 1 to 3 and if interim injunction is not granted, the purpose of the suit itself will be defeated. Hence, interim injunction granted restraining the respondents 1 to 3_ **FAO NO. 61 OF 2021 4** _or their agents or any other persons claiming title through the respondent 1 to 3 from dubbing, re-producing, and remaking the Malayalam film 'Kappela' in any other languages in India or outside or to produce, dub, remake any other film having the same story of the said film 'Kappela' including shooting of film infringing the copyright of the petitioner without the written permission of the petitioner until further orders.”_ 2. An ex parte order of injunction was granted on 26/7/2021 without notice to the respondent/defendant therein. On 23/07/2021, the suit was filed. Counter to the injunction application was submitted on 09/08/2021, after getting notice. Even after the expiry of thirty days from the date of passing of the order of injunction, the matter was not heard by the trial court and no order was passed either confirming or rejecting the order of injunction. After the lapse of more than 45 days, the defendant Nos.1 and 2 came up in appeal on 15/09/2021 aggrieved by the said ex parte order of ## **FAO NO. 61 OF 2021 5** injunction. A preliminary objection regarding maintainability of appeal was raised on the ground that the order should be construed as one under Order XXXIX Rule 3-A C.P.C. and that there is no provision for an appeal against the said order and relied on the two decisions, one rendered by this Court in **V.T.Thomas v. Malayala Manorama Co.Ltd. (1988 (1) KLT** **433)** and the other by the High Court of Madras in **Abdul Shukoor Sahib v. Umachander and others (1976** **SCC Online Mad 57 : AIR 1976 Mad 350)** . 3. It is true that normally it is not permissible to file an appeal against an ex parte order of injunction, unless there is failure on the part of the trial court to comply with the mandate under Order XXXIX Rule 3-A C.P.C.. When there is laches on the part of the trial court to take up the matter within the time as specified under Rule 3-A of Order XXXIX C.P.C., unless it was delayed on account of the inaction on the part of the opposite party. The legal consequences thereof was taken into **FAO NO. 61 OF 2021 6** consideration and suggestions were made by the Apex Court in **A.Venkatasubbiah Naidu v. S.Chellappan and** **Others [(2000) 7 SCC 695]** . Paragraph 21 of the said judgment is extracted below for reference: _“21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate_ **FAO NO. 61 OF 2021 7** _court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.”_ 4. The legal position, thus, settled that when the trial court flouted the mandate under Rule 3-A of Order XXXIX C.P.C., the aggrieved party shall be entitled to a right of appeal notwithstanding the pendency of the application for grant or vacation of temporary injunction against the order remaining in force. It is further observed by the Apex Court that in such appeal, “ _the appellate court shall be obliged_ ## **FAO NO. 61 OF 2021 8** _to entertain the appeal and further to take note of_ _the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule_ ”. The legal position being settled so, further discussion is not necessary to conclude that when there is a clear default, violation, failure to comply with the requirement under Rule 3-A, the order shall be deemed to be a final order for the purpose of the appeal. Hence there is no much merit in the preliminary objection raised. **FAO NO. 61 OF 2021 9** 5. On coming into the merits, even going by the plaint, the claim of the plaintiff is limited to the grievance that his name was not endorsed in the movie or its title, though he was one among the four persons participated in the preparation of script. It was argued by the learned counsel that the creativity shall not be defeated unless the contract contains such a clause. But no such clause was brought to the notice of this Court. The claim of plaintiff is with respect to the right to incorporate his role in the making of the film and it should be exhibited. Inter alia, it was contended that the parentage of creativity has to be retained. Even assuming that the plaintiff is a co-author of the screen play or a person actively participated in the preparation of script, necessarily the suit must be for the relief in connection with the said right. But what is sought for in the suit and also by way of injunction is to stall and stop all the proceedings of the remaking of the film in Telugu language, which would ## **FAO NO. 61 OF 2021 10** prima facie show what is behind it. The right claimed by the plaintiff was disputed by the defendants on the ground that it was prepared by three persons and on one occasion, the plaintiff, though participated, subsequently had withdrawn. It is further submitted that the script and the screen play is the result of work done by the said three persons with whom they had entered into a contract. When the plaintiff's claim was disputed and denied, a mere suit for injunction cannot be maintained. There is no substantial prayer for declaration of disputed right claimed by the plaintiff. The legal position is very much settled by the Apex Court in a catena of decisions including the decision drawn in **Jhardhand State Housing Board v. Didar Singh and Another** **[(2019) 17 SCC 692].** It is true that the plaintiff can amend the plaint at any time for incorporation of a substantial relief of declaration, but till that time, a mere suit for injunction would stand defective on account of the dispute and denial raised ## **FAO NO. 61 OF 2021 11** by the defendants with respect to the claim raised. Hence, the injunction granted without looking into the maintainability of the suit cannot be sustained. 6. Further, the relief sought in the suit and the interim injunction application is not for preserving the alleged right claimed by the plaintiff i.e. his name should find a place in the movie as one of the persons having the parentage of creativity. What is sought by the plaintiff is the entire stoppage of the re-making of the movie in Telugu language. It would show that the relief sought either in the suit or in the interim injunction application is not for the purpose of preserving the claim of plaintiff, but to stall the entire proceedings of re-making of the film and obtained an ex parte injunction under that guise. In fact, there is no cause of action for stoppage of entire re-making of the movie in Telugu language even going by the claim raised by the plaintiff in the suit. 7. Yet another striking aspect was also brought ## **FAO NO. 61 OF 2021 12** to the notice of this Court that the suit is for a decree of injunction in terms with the relief sought in the temporary injunction application. Such a kind of injunction, if granted, that too, without hearing the respondents would amount to granting a decree as claimed in the suit without its trial. Such practice was deprecated by several decisions of this Court and the Apex Court. 8. In short, the trial court while granting temporary injunction has failed to consider even a prima facie case for the grant of relief as sought for by way of temporary injunction and that has resulted in miscarriage of justice. Hence, the temporary injunction granted is liable to be vacated. I do so, without prejudice to the right of parties to take up the issue in the trial court for the purpose of passing a final order in the interlocutory application, for which the trial court shall fix a convenient day and dispose of the same after affording an opportunity of hearing to both the **FAO NO. 61 OF 2021 13** parties. Till that time, the temporary injunction granted will stand vacated. The appeal is allowed accordingly. No costs. Sd/- **P.SOMARAJAN JUDGE** msp **FAO NO. 61 OF 2021 14** ## **APPENDIX OF FAO 61/2021** ## **PETITIONER ANNEXURES** |**Annexure A1**|**A TRUE COPY OF THE PLAINT IN OS NO.32/21**| |---|---| ||**ON THE FILE OF THE HON'BLE DISTRICT**| ||**JUDGE VI-ERNAKULAM DATED 19.7.2021.**| |**Annexure A2**|**A TRUE COPY OF THE IA 3/21 IN OS**| ||**NO.32/21 DATED 19.7.2021.**| |**Annexure A3**|**A TRUE COPY OF THE COUNTER AFFIDAVIT**| ||**FILED BY THE APPELLANTS HEREIN IN**| ||**I.A.3/21 IN OS 32/21 BEFORE THE HON'BLE**| ||**DISTRICT JUDGE VI-ERNAKULAM DATED**| ||**5.8.2021.**| |**Annexure A4**|**A TRUE COPY OF INTERIM ORDER DATED**| ||**7.9.2021 IN OP(CIVIL)1476/21.**| |**RESPONDENTS ANNEXURES**|| |**ANNEXURE R1(A)**|**TRUE COPY OF THE CAVEAT FILED BY THE 1ST**| ||**APPELLANT BEFORE THE SUB COURT,**| ||**ERNAKULAM ON 23.07.2021**| |**ANNEXURE R1(B)**|**TRUE COPY OF THE CAVEAT FILED BY THE 1ST**| ||**APPELLANT BEFORE THE DISTRICT COURT,**| ||**ERNAKULAM ON 23.07.2021**| |**ANNEXURE R1(C)**|**TRUE COPY OF THE FACEBOOK POST OF THE**| ||**2ND RESPONDENT HEREIN**| |**ANNEXURE R1(D**|**TRUE COPY OF THE COUNTER AFFIDAVIT OF**| ||**THE 2ND RESPONDENT, IN I.A.NO.3 OF 2021**| ||**IN O.S.NO.32/2021 OF DISTRICT COURT,**| ||**ERNAKULAM**| |**ANNEXURE R1(E)**|**TRUE COPY OF THE IMPLEADING PETITION AS**| ||**I.A.NO.3 OF 2021 IN O.S.NO.32/2021**|