High Court of KeralaSingle Judge2010-06-24Appeal disposed of as above.

Sreenivasan and others v. K.V. Vijayan

Case / Petition Number:FAO.No.135 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Harun-ul-Rashid, J.
Judgment Date: 2010-06-24
Court Decision / Holding: The High Court held that the order should be refined by hearing both sides and perusing the scripts and other relevant materials. The lower court was directed to pass orders within ten days from receipt of this judgment. The interim order was to continue until disposal of the interlocutory application. The appeal was disposed of as above.
Final Disposition: Appeal disposed of as above.

Parties to the Case

Appellants / Petitioners

Sreenivasan
T.K. Rajeev Kumar
S. Raju (aka Manian Pillai Raju)

Respondents

K.V. Vijayan

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Sreekumar
• Sri P. Martin Jose
• Sri P. Prijith

Counsels for Respondents

• Sri P. Chandrasekhar

Case Synopsis & Summary

This is a First Appeal from Order (FAO No.135 of 2010) before the Kerala High Court challenging an ex parte interim injunction issued by the District Court, Kozhikode in O.S.1/2010. The plaintiff, K.V. Vijayan, alleged copyright over his literary script Ee Kaliveettil Ninnu and claimed the defendants infringed it by adapting and converting the work into a cinematic script for the film ‘Oru Nalla Nal Varum’, while changing the caption. The first defendant is an actor, director and writer; the second defendant is the director of a film; the third defendant is the producer. The plaintiff sought a permanent prohibitory injunction restraining release, distribution or exhibition of the film. The District Court granted the ex parte injunction on finding a prima facie case and in favor of the plaintiff's balance of convenience. The appellants contend that the film Oru Nalla Nal Varum was to release in 70 theatres in Kerala on 14 May 2010; the plaintiff’s right-up in Chithrabhumi is a private publication dated 18 March 2010; the suit was filed 12 May 2010, two days before release, and there is no material to show substantial similarity. They also assert readiness to produce the scripts and to exhibit the film to prove lack of copyright violation. The High Court stayed the order briefly and, after hearing both sides, held that the matter required perusal of scripts and other materials, directing the lower court to decide within ten days; interim relief continues until disposal. The appeal is disposed of accordingly.

Legal Doctrines & Maxims

Safest test for copyright infringement: whether a reader/viewer, after seeing both works, can discern that the impugned work is an imitation of the original (RC Anand v. Deluxe Films)
Prima facie case and balance of convenience standard in grant of interim injunctions in copyright matters.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the film Oru Nalla Nal Varum was slated for release in 70 theatres on 14 May 2010; the Chithrabhumi right-up (18 March 2010) is a private publication; the suit was filed on 12 May 2010, two days before release, indicating an attempt to block release and extract money, rather than a demonstrated copyright violation. They contended there is no substantial similarity between the script of the plaintiff and the appellants’ script; the appellants’ scripts had not been published and the film had not yet released; there is no prima facie case established by the plaintiff; they offered to produce the script for perusal and to exhibit the film before the court to demonstrate lack of copyright infringement. They urged hearing both sides and perusing materials before any further order.

Contentions of Respondents

The respondent-plaintiff pressed that copyright infringement could be inferred from the imitation potential and relied on the precedents cited to justify a prima facie case; citing Madhavan v. S.K. Nayar and RC Anand v. Deluxe Films, he argued the lower court’s ex parte injunction was warranted where the reader/viewer could perceive imitation; he asserted that a notice and full hearing would be appropriate, but argued for protection of his copyright rights and expeditious adjudication.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Madhavan v. S.K. Nayar and Others	(1987 (2) KLT 47)	Mentioned Only	Cited by respondent’s counsel; the court acknowledges it but bases its test on the Apex Court’s RC Anand decision, not on Madhavan per se.
R.C. Anand v. M/s. Delux Films and Others	(AIR 1978 SC 1613)	Positive	Apex Court decision cited as the source of the test for copyright infringement and followed by the court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 FAO.No. 135 of 2010() --------------------AGAINST THE ORDER IN CMP 157/2010 IN OS.1/2010 OF THE DISTRICT COURT, KOZHIKODE. ................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. SREENIVASAN, S/O.UNNI, "VINEETH", POOKODE. P.O., KOOTHUPARAMBU, KANNUR. 2. T.K.RAJEEV KUMAR, S/O.KARUNAKARA PANICKER ELANGOM GARDEN, SASTHAMANGALAM.P.O., TRIVANDRUM-10. 3. S.RAJU @ MANIAN PILLAI RAJU, S/O.SEKHARAN NAIR, ANANDAM BHAGAVATI LANE, KOWDIAR,TRIVANDRUM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH RESPONDENT(S): PETITIONER/PLAINTIFF ----------------------------------- K.V.VIJAYAN, S/O.LATE BALAN, KIZHAKKUM, VEETTIL,VENAPPARA,KUDATHY, PEUVILLY DESOM, KOZHIKODE. BY ADV. SRI.P.CHANDRASEKHAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## I.A.NO.1741/2010 IN FAO.NO.135/2010 ----------------------- DISMISSED 24/6/2010. Sd/HARUN-UL-RASHID, JUDGE. ## **HARUN-UL-RASHID,J. -----------------------------F.A.O.NO.135 OF 2010 ------------------------------DATED THIS THE 24TH DAY OF JUNE, 2010** ## **JUDGMENT** The interim order dated 12/5/2010 passed by the District Court, Kozhikode is under challenge in this appeal. The impugned order was passed ex parte. The appellants are the defendants in the suit. 2. The respondent herein is the plaintiff in O.S.No.1/2010 on the file of the District Court, Kozhikode. It is the plaintiff's case that he wrote a script with an intention to make a movie under the caption “Ee Kaliveettil Ninnu”. 3. The lst defendant is an actor, director and story writer in Malayalam, 2[nd] defendant is the director of a film “Oru Nalla Nal Varum” and the 3[rd] defendant is the producer. It is the plaintiff's case that defendants infringed the copy right of his literary work under the caption “Ee Kaliveettil Ninnu” by adaption and conversion of the work into a cinematic work for **-2-** ## F.A.O.No.135/2010 performance in public by making slight changes in the script of the plaintiff and also by changing the caption as “Oru Nalla Nal Varum”. The plaintiff sought for permanent prohibitory injunction restraining the defendants and their men from releasing, distributing or exhibiting or in any other manner dealing with the above said film “Oru Nalla Nal Varum”. Along with the plaint, the plaintiff produced the script of “Ee Kaliveettil Ninnu” written by him, the other only document produced is a right up in 'Chithrabhumi' film magazine. The court below on the basis of the materials produced passed orders ex parte stating that there is a prima facie case for the petitioner and that the balance of convenience is also in favour of the petitioner. 4. The learned counsel for the appellants submitted that the film “Oru Nal Varum” was proposed to be released on 14/5/2010 in 70 theatres in Kerala, that the Chithrabhumi right up produced along with the plaint is a private publication dated 18/3/2010 and that the suit was filed only on 12/5/2010, two days **-3-** ## F.A.O.No.135/2010 before the release date. According to the learned counsel, the suit was filed only with the intention to block the release of the film and the real purpose behind the filing of the suit is to extract money from the producer. The learned counsel submitted that there is absolutely no semblance or similarity with the story and script of the appellants with the script of the plaintiff produced along with the plaint. Learned counsel submitted that the story or the script of the appellants were never published and the film has not been released yet. It is further submitted that on a mere allegation of violation of copy right the suit was filed without producing basic materials to convince the court below that there is a strong prima facie case for the plaintiff. 5. This Court passed an interim stay of the impugned order by order dated 26/5/2010. The matter was brought up today for the first time at the instance of the learned counsel for the respondent/plaintiff. 6. The learned counsel for the appellants submitted **-4-** ## F.A.O.No.135/2010 that the producer made all arrangements to exhibit the film and the film is proposed to be exhibited from 25/6/2010 (tomorrow). The film is proposed to be exhibited in 70 theatres all over Kerala giving wide publicity spending huge amounts for the release of the film. The counsel also submitted that all the 70 theatres were booked for exhibition of the film and that the move of the plaintiff to vacate the stay at this distance of time is with a mala fide intention. 7. The learned counsel for the respondent/plaintiff brought to this Court's attention the decision of the Division Bench of this Court reported in **Madhavan v. S.K. Nayar and Others (1987 (2) K.L.T. 47).** This Court following the decision of the Apex Court reported in **R.C. Anand v. M/s.Delux Filsm and Others (AIR 1978 SC 1613),** held that the safest test to determine whether or not there has been a violation of copy right is to find out if the reader, spectator or the viewer after having read or seen both the works can get an impression that the **-5-** ## F.A.O.No.135/2010 impugned work of film is an imitation of the other. The learned counsel also submitted that the impugned order was passed after the learned Judge satisfying about the strong prima facie case made out by the plaintiff. In a case of alleged violation of copy right infringement, the court below ought to have preferred to issue notice to the defendants and would have passed the order after hearing both sides. The learned counsel for the appellants made available a copy of the script of the film. Learned counsel submitted that he shall produce the copy of the script of the film before the court below for perusal. He also submitted that the appellants are ready to exhibit the film before the court below in order to prove that there is no copy right violation. 8. In the circumstances, this Court is of the view that order shall be passed, after hearing both sides and after perusing the scripts and other relevant materials. The court below shall pass orders in the matter within ten days from the date of receipt of a copy this judgment. The appellants shall appear before the **-6-** ## F.A.O.No.135/2010 court below on 29//6/2010. The interim order passed by this Court shall continue till the disposal of the interlocutory application. Appeal is disposed of as above. **HARUN-UL-RASHID, JUDGE.** **kcv.**