IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 FAO.No. 362 of 2007() ------------------------------- AGAINST THE ORDER DATED 30/11/2007 IN IA.5228/2007 IN OS.65/2007 of II ADDL.DISTRICT COURT,ERNAKULAM .................... APPELLANTS - PETITIONERS - PLAINTIFFS: ---------------------------------------- 1. K.T.JOHN, AGED 42 YEARS, S/O.THOMAS, KOCHAPILLY HOUSE, VENNALA P.O., CHALIKKAVATTOM, KOCHI-28. 2. GOPINATH, AGED 55, S/O.MADHAVAN NAIR, NEAR ERATTUKULANGARA TEMPLE, ALAPPUZHA. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1. AMEETH.R.MOHAN, MITH PRODUCTIONS (FILM PRODUCER) 504, SAMEERTHA, VAIDHAV, LOKHANDWALA COMPLEX, ANDHERI WEST, ANDHERI, MUMBAI, NOW AT SHOGUN FILMS, SIVA TEMPLE ROAD, SOUTH PONKUNNAM, THRISSUR DISTRICT. 2. A.Y.AKBER @ AKKU AKBAR, AGED 40, (DIRECTOR OF FILM "GOURI THE UNBORN"), S/O.YUSUF, LEKKARATH BUILDING, THALIKULAM P.O., TRICHUR DISTRICT, KERALA. 3. K.GIRISHKUMAR, AGED 35, SCRIPT WRITER, PARAKULANGARA HOUSE, MINALOOR P.O., TRICHUR. 4. KERALA FILM CHAMBER OF COMMERCE, P.B.NO.357, M.G.ROAD, KOCHI-35, REPRESENTED BY ITS SECRETRY. BY ADV. SRI.ZAKEER HUSSAIN SRI.K.GEORGE VARGHESE KANNANTHANAM SRI.TONY GEORGE KANNANTHANAM THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = F.A.O. NO.362 OF 2007 = = = = = = = = = = = = = = = = = = = Dated this the 10th day of January, 2008 J U D G M E N T -------------------- Plaintiffs in O.S. No.65 of 2007 on the file of the District Court, Ernakulam, are the appellants. Appeal is filed against the order passed in I.A. No.5228 of 2007 in the said suit. Plaintiffs filed the suit alleging that the first plaintiff is a story writer and the second plaintiff is a Director of films by profession. It was averred that the first plaintiff wrote a story by name 'Monsoon' and got it registered with the South Indian Film Writer's Association, Chennai on 15.7.2003. On 26.7.2003 first appellant filed an application for registration before the Kerala Film Chamber of Commerce describing one Philip Mathew as the proprietor. It was averred that the plaintiffs discussed the story with the second defendant. The script of the story was published in various news papers and film magazines. The second defendant sought permission of the first plaintiff to make a film in Hindi which was declined by the first plaintiff. It was averred that contrary to the understanding, second defendant with the help of the first F.A.O. NO. 362 OF 2007 -: 2 :- defendant in collusion with 'Shogun Films' started making a film and at that time plaintiffs filed O.S. No.20 of 2006 before the District Court, Ernakulam. In order to defeat the plaintiffs, the present film was stated to be made under the banner of 'Mith Productions'. It was averred that the title of the film was changed as 'Gouri'. It was averred that the defendants is actually made the film 'Gouri' using the script written by the first plaintiff which was given to the second defendant for perusal and as such they are to be restrained from screening the movie. In the suit plaintiffs filed an injunction petition on 27.11.2007. On 28.11.2007 notice was ordered. On 29.11.2007 defendants 1 to 3 appeared. Injunction application was heard on that day and the same was dismissed on 30.11.2007. Challenging that order, this appeal is filed. 2. It is true that defendants have not produced the script of the movie 'Gouri'. It is settled law that there cannot be any similarity in any idea, themes, plots or historical or legendary facts. In R.G. Anand v. Delux Films and Others (AIR 1978 SC 1613) it was held that when same idea is being developed in a different manner, it is manifest that the F.A.O. NO. 362 OF 2007 -: 3 :- source being common similarities are bound to occur. 3. Trial court took a view that for proving infringement of the copy right, it is necessary to have a comparison of the scripts and the manner in which themes were presented. If the themes are same and presentation differs, there cannot be any infringement of the copy right. 4. The film had already been screened and as such I am of the view that it is only just and proper that the appeal is disposed of with a direction to dispose of the suit itself before the courts close for summer vacation. In case the defendants make the film in any other Language, it is open to the plaintiffs to move for injunction restraining them from making the movie in any other Language. Defendants shall produce the script, as expeditiously as possible and co-operate with the trial of the suit. In the result, the appeal is disposed of with a direction to the District Court, Ernakulam, to dispose of O.S. No.65 of 2007 itself before the courts close for summer vacation. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH JANUARY, 2008