IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 FAO.No. 369 of 2011() --------------------- AGAINST THE ORDER DATED 09/12/2011 IN IA 4381/2011 IN OS.5/2011 of DISTRICT COURT, THRISSUR .................... APPELLANT(S)/PLAINTIFF: ------------------------------------ AYYAPPA DARSHAN, S/O. RAMAKRISHNAPILLA, AGED 30 YEARS, CHETTIYATHU PUTHENVEEDU, EDAKULANGARA P.O., KARUNAGAPALLY. BY ADV. SRI.BIJU M.JOHN RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. ARUN GOSH, S/O. NOT KNOWN, PRODUCER, AGED ABOUT 35 YEARS, MUTHEDATHU HOUSE, MANNUTHY P.O., THRISSUR- 680 651. 2. AKKU AKBAR, DIRECTOR, S/O. NOT KNOWN, AGED ABOUT 40 YEARS, ARAKKA VEETIL, THALIKULAM P.O., THRISSUR - 680 641. 3. G.S. ANIL, S/O. NOT KNOWN, AGED ABOUT 38 YEARS, SCRIPT WRITER, C/O. AKKU AKBAR, ARAKKA VEETIL, THALIKULAM P.O., THRISSUR - 680 641. ADV. SRI. T.M. CHANDRAN - CAVEATOR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 369 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2011. JUDGMENT This appeal is directed against the order in I.A.4381 of 2011 in O.S.5 of 2011. 2. The suit was based on the grievance of infringement of copyright. The appellant claimed to be a Diploma Holder in Film Direction from Kerala Film Academy and also passed Advanced Diploma in Digital Multimedia and he is also claimed to the a story writer. He claimed in the plaint that after a long research he developed a story 'Swamis Lodge' by getting inspiration from an article published in a weekly, which relates to the life story of prominent film personalities while they were trying to enter into the film industry. It is further averred that during his research, he came to know that the above persons had produced a movie named 'Thiranottam' about 30 years ago, FAO.369/2011. 2 but could not release the same. Drawing inspiration from the said materials he created a story of his own. He claims to have sent the scene order of his story to his mother in the year 2006 by registered post and he later came to know that the defendants in the suit have made a movie based on a story almost similar to the story developed by the plaintiff. The film 'Vellaripravinte Changathikal' directed by the second defendant and produced by the first defendant has almost the same story said to have been conceived by the plaintiff and it is pointed out that the film 'Vellaripravinte Changathikal' is a true visual representation of the story which he conceived. He therefore contended that his copyright has been infringed and sued on that basis. The plaintiff filed I.A.4381 of 2011 in O.S.5 of 2011 seeking interim relief against the defendants. 3. The defendants entered appearance and filed a detailed counter affidavit. They challenged the jurisdiction of the court to go into the issue. It was claimed by them FAO.369/2011. 3 that there is nothing to show that the plaintiff was the author of the story based on which the film was made and he had no case that he had published his work. They disputed that they had come across the story of the plaintiff and it was contended by them that the story was conceived by one among them and the mere fact that it might have some resemblance with the story conceived by the plaintiff is not a ground to grant relief to the plaintiff. 4. The court below after hearing both sides dismissed the application. This appeal is directed against the said order. 5. It is surprising to note that the court below deferred the issue of jurisdiction to be decided at a later stage. It was clear from a reading of the order that the respondents have challenged the inherent jurisdiction of the court below to try the issue. In such a situation the issue of jurisdiction had to be decided first and one fails to understand how the court below deferred consideration of FAO.369/2011. 4 that question. If, ultimately on considering the issue, the court finds that it has no jurisdiction to try the case, the exercise now undertaken by the court below would be futile. 6. Whatever that be, the question now arises for consideration is whether any interference is called for with the order of the court below. 7. Learned counsel appearing for the appellant contended that the court below has not looked into the various documents produced by him and not adverted to the evidence before coming to the conclusion that the petitioner before the court below has not made out a prima facie case. Had the court below looked into the materials produced before it, it is contended, the court below could have easily come to the conclusion that the story based on which the film is made is the true replica of the story of the plaintiff and his copyright has been violated. It is also contended that the court below was not justified in not FAO.369/2011. 5 marking the documents produced before it and that the order passed is unsustainable in law. 8. Sri.T.M.Chandran, learned counsel appearing for the respondents, who have filed a caveat, contended that the plaintiff has no case that he had a published work based on which the story of the film was drawn up. He has also no case that the story or the material conceived by him was ever shown to any of the persons in connection with the film 'Vellaripravinte Changathikal'. Learned counsel also pointed out that the court below ought to have considered the question of jurisdiction before going into the issue covered by the interlocutory application. 9. On going through the order of the court below, there is nothing to show that the plaintiff had disclosed his story to anyone of the persons who are concerned with the making of the film 'Vellaripravinte Changathikal'. He has no case that the story of the movie was made on the basis of a published work. His main case seems to be that he has sent FAO.369/2011. 6 the scene order of his story by registered post to his mother and if that was opened, it could have seen that the story conceived by him is the basis of the film 'Vellaripravinte Changathikal'. How far that would be sufficient is doubtful. This court repeatedly asked the appellant's counsel to point out as to how the respondents came to lay hands on the so-called story said to have been conceived by the plaintiff and which is said to have been sent to his mother. Learned counsel was unable to offer any explanation as to how the respondent had occasion to see his work. It is under these circumstances that the court below was constrained to observe that probably the same idea might have been developed by the respondents also and as rightly noticed by the court below there cannot be copyright of an idea. The court below was therefore justified in coming to the conclusion that prima facie there is no material to show that the respondents are guilty of the mischief of piracy. FAO.369/2011. 7 10. Learned counsel appearing for the respondents also pointed out that the interim prayer and the main relief in the suit are same. 11. That would mean that a decision on the interlocutory application would virtually decide the fate of the suit also. It is therefore necessary to protect the interests of both sides so that a fair decision could be arrived at in the suit. It escapes ones understanding as to why the court below has not considered the question of jurisdiction before going into the issue covered in the I.A.. Atleast the court below could have decided jurisdictional issue along with the issue in the interlocutory application. 12. Whatever that be, this court finds no grounds to interfere with the order of the court below on the I.A. Accordingly the appeal is dismissed. However, it is made clear that the court below may make every endeavour to dispose of the suit as expeditiously as possible untramelled by any of the FAO.369/2011. 8 observations made by the said court while dismissing the I.A. and untramelled by the observations made by this court while dismissing their appeal. The court below may consider the question of jurisdiction first before going into the other questions, unless the question of jurisdiction can be decided only on evidence to be adduced in the case. P. BHAVADASAN, JUDGE sb.