IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 31381 of 2009(O) ---------------------------------------- CMA.65/2009 of III ADDL. DISTRICT COURT, KOLLAM OS.365/2009 of PRINCIPAL SUB COURT,KOLLAM (IA. 1781 /2009) .................... PETITIONER(S): APPELLANTS ------------------------- 1. A.R. CHANDRASEKARA KURUP, S/O. RAMAKRISHNAN NAIR, AZHAKATH PUTHENPURA, CHAVARA SOUTH, KARUNAGAPALLY , KOLLAM. 2. VIJAYALAKSHMI KUNJAMMA, D/O. PADMAKSHY KUNJAMMA, KAIPPALLIL LANNE, PALKULANGARA PETTA POST, THIRUVANANTHAPURAM. BY MR.GOVIND K.BHARATHAN, SENIOR ADVOCATE BY ADVS. MR.C.P.KUNJHIKANNAN MR.S.K.MADHU RESPONDENT(S): RESPONDENTS ----------------------- 1. AZHAKATH SREEKARANA DHARMA STHANAM TRUST, AZHAKATH, CHAVARA THEKKUMBHAGAM VILLAGE, KARUNAGAPALLY TALUK, REP.BY ITS SECRETARY. 2. BHARGAVA KURUP, S/O. ESWARA KURUP, AZHAKATH SASTHANKARA, KULACHAL POST, KANYAKUMARI. 3. P.RAVEENDRA UNNITHAN, S/O. PADMANABHA KURUP, AZHAKATH LAKSHMI MANDIRAM, CHAVARA SOUTH, KARUNAGAPALLY. 4. RAMACHANDRA KURUP, S/O. ESWARA KURUP, AZHAKATH, YAMUNA NAGAR, KARAKULAM POST, THIRUVANANTHAPURAM. W.P.(C) NO.31381/2009 5. SHAJI N. KARUN, CINE DIRECTOR, PIRAVI T.C. 15/222, UDARSIROMANI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM. 6. THE PRODUCER, BIG MOTION PICTURES- DIVISION OF RELIANCE BIG- ENTERTAINMENT PRIVATE LTD., 4A, OXFORD BUSINESS CENTER, SREE KANDATH ROAD, RAVIPURAM, COCHIN. R2 TO R4 BY ADV.MR .C.RAJENDRAN R5 BY ADV. MR.C.E.UNNIKRISHNAN R6 BY ADVS. MR.RAJA VIJAYARAGHAVAN, MR.R.RANJITH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31381/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 365/09 OF THE SUB COURT, KOLLAM. P2:- COPY OF THE IA. NO.1781/2009 IN IOS. 365/09 OF THE SUB COURT, KOLLAM. P3:- COPY OF THE ORDER DTD. 10.7.09 IN IA. 1781/09 IN OS. 365/09 OF THE SUB COURT, KOLLAM. P4:- COPY OF THE CMA. 65/09 OF THE HONOURABLE DISTRICT COURT, KOLLAM. P5:- COPY OF THE IA. 1419/09 IN CMA. 65/09 OF THE HONOURABLE DISTRICT COURT, KOLLAM. P6:- COPY OF THE JUDGMENT DTD. 25.8.09 IN WPC. 24424/09. P7:- COPY OF THE JUDGMENT DTD. 30.9.09 IN CMA. 65/09 OF THE IIIRD ADDL. DISTRICT COURT, KOLLAM. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.31381 of 2009 - O --------------------------------- Dated this the 10th day of November, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to Ext.P7 judgment and issue appropriate order or direction setting aside the same. ii) To grant the reliefs prayed for by the petitioners in I.A.No.1781 of 2009 in O.S.No.365 of 2009 of Sub Court, Kollam praying for an injunction restraining the 5th and 6th respondents from exhibiting the scenes shot in and around the kalari, other deities, sarpa kavu in the plaint schedule property.” 2. Petitioners are the plaintiffs in O.S.No.365 of 2009 on the file of the Additional Sub Court, Kollam. Respondents are the defendants in the suit. Suit is one for a decree of permanent prohibitory injunction restraining fifth and sixth defendants from exhibiting the scenes shot in and around the kalari, other deities and the sarpakavu situate in the plaint property, having an extent of 1 acre 60 cents in resurvey No.1374 of Thekkumbhagam Village, Karunagappilly. Ext.P1 is the copy of the plaint. With the suit, plaintiffs moved an application for W.P.(C).No.31381 of 2009 - O 2 interim injunction identical to the relief sought for in the suit till its disposal. Ext.P2 is the copy of that application. Fifth and sixth defendants resisted the application filing separate objections. The learned Sub Judge after hearing both sides dismissed the application of the plaintiff vide Ext.P3 order. Challenging Ext.P3 order, plaintiff preferred Ext.P4 appeal before the District Court, Kollam. The learned District Judge after hearing both sides, dismissed the appeal vide Ext.P7 judgment confirming the order passed by the learned Sub Judge dismissing Ext.P2 application of the plaintiffs. Propriety and correctness of Ext.P7 judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Sixth respondent has filed a counter in the writ petition. I heard the counsel on both sides. 4. The learned Sub Judge and also the learned District Judge went wrong in appreciating the facts and circumstances presented in the case and both courts without taking into consideration the irreparable injury that is likely to be caused to W.P.(C).No.31381 of 2009 - O 3 the plaintiffs and other members of the family in the exhibiting of the scenes over the mock pooja conducted in front of the deity of the kalari, a sacred place, purity of which has to be preserved at any cost, have declined the discretionary relief of injunction sought for, according to the counsel, on the premise that if injunction is granted at this stage it would cause irreparable loss and hardship to respondents 5 and 6. Conclusion so formed to disallow the discretionary relief in the given facts of the case, is patently erroneous, according to the counsel, as the objected shots forming part of the cinema cover only 60 seconds. Exhibition of the objected shots in view of the serious prejudice and irreparable injury likely to be caused to the family members including the plaintiffs, according to the counsel, is impermissible. The exhibition of the film as such is not objected to, but, only the objectionable shots which had been taken in front of the kalari, conducting of a mock pooja there, which had caused great pain and grievous hurt and mental agony to the members of the Azhakath family, submits the counsel. On the other hand, learned counsel appearing for the respondents contended that no W.P.(C).No.31381 of 2009 - O 4 interference with the concurrent decision formed by the two courts below that the plaintiffs had not made out sufficient cause for the discretionary relief of injunction, is warranted by exercise of the visitorial jurisdiction vested with this Court. Plaintiffs cannot be the judges as to what would be the impact of nonexhibition of a part of the film, whatever be the duration of that objectionable shot, as the homogeneity of the film with the rest of the film and its indispensability as inseparable part of the film are all matters to be left to the freedom of the director of the film, submits the counsel. Have the plaintiffs made out sufficient cause of interim relief of injunction, in the given facts of the case, that alone is the question to be considered and not as to whether a portion of the film even if it covers only 60 seconds had to be cut off and expunged for the reason canvassed by the plaintiffs that the objected shots are likely to hurt their sentiments and also members of the family, according to the counsel. Both courts have found that the case canvassed by the plaintiffs, for more than one reason, cannot be accepted on its face value and they are not entitled to the discretionary relief of injunction. The W.P.(C).No.31381 of 2009 - O 5 film in respect of which some scenes shot are being objected to by the plaintiffs contending that such scenes have been shot in front of a kalari of a tharavad hurting their sentiments, which, according to the counsel, has no basis at all, is selected for more than one international film festival and any order of injunction by the court as desired by the plaintiffs would affect its artistic value and also its homogeneity. According to the counsel the respondents entertain a reasonable apprehension that the suit has been filed by the plaintiffs, and the interim injunction applied for to restrain exhibition of certain portions of the film, to obstruct and prevent exhibition of the film in international film festivals at the instance of some interested parties who could not get selection for exhibiting their films in such festivals. Once selection is made for exhibition of a film in international film festivals, if for any reason the exhibition of the film is blocked by orders of the court or otherwise, preventing exhibition of at least some shots in the film, then, the entry of the film in the festival is also likely to be jeopardized and in that event severe hardship and irreparable injury would be caused to the fifth and sixth W.P.(C).No.31381 of 2009 - O 6 respondents, submits their counsel. 5. Some scenes shot in the film by name “Kutty Srang” in the plaint property covered by the suit, stated to be a tharavad of an ancient Nair family, namely, Azhakath, in Thekkumbhagam village in Karunagappilly, hurt religious sentiments and wound the feelings of the plaintiffs, members of the family, is the crux of the case for the relief claimed in the suit. The family has constituted a trust to manage, maintain and preserve its kalari, sarpakavu and the deities in the plaint property. First respondent is that trust. A scheme has been settled for administration of the temple in a previous suit. Respondents 2 to 4 are the President, Secretary and joint Secretary, duly elected as per the scheme of the trust. There is no dispute that permission was accorded by the respondents 2 to 4 to the respondents 5 & 6, director and producer of the film “Kutty Srang”, for shooting that film in the plaint property. The film shooting was conducted in and around the kalari and a mock pooja was conducted there, a sacred place where the family members performed poojas for centuries and such shooting over that serene place without permission and W.P.(C).No.31381 of 2009 - O 7 consent, hurt the feelings of the members of the family is the case of the plaintiffs to restrain respondents 5 & 6 from exhibiting the scenes shot at the kalari in the film. None of the scenes in the film was shot in the kalari in the plaint property, leave alone desecration of the kalari, sarpakavu or deities therein, and in fact the scenes were shot at considerable distance away from the kalari is the case of the respondents 5 & 6. Perusing P3 order passed by the learned Sub Judge and also P7 judgment rendered by the learned District Judge, it is seen, both the courts have taken into account that the shooting of the film in the plaint property was done on the basis of an agreement by which a sum of Rs.50,000/- was given as consideration to the first respondent trust. Such permission was given under specific mandate that the sixth respondent had to maintain the building and till the shooting was over such maintenance of the building should be done under the supervision of a representative of the 4th respondent, to whom the sixth respondent had to pay Rs.200/- per day as wages. Sanctity of the kalari in the tharavad had also been insisted upon under the agreement. The management of W.P.(C).No.31381 of 2009 - O 8 the in first respondent trust had accorded sanction for the shooting of the film on such terms stipulated upon under the agreement. It has no objection that any scenes shot in the film was objectionable nor that any objectionable scenes were shot in the kalari of the tharavad. In the suit, as seen from Ext.P1 plaint, relief is canvassed only against the fifth and sixth defendants but not against defendants 2 to 4 who are in management of the first respondent trust. No relief is sought against respondents 2 to 4 cannot be lost sight of in evaluating the discretionary relief of interim injunction sought for by the plaintiff in the present case. Those in management of the trust has no grievance against the shooting of the scenes in the tharavad which was carried out on the basis of a lawful agreement extending consideration of Rs.50,000/- to the trust for such permission. The plaintiffs have no case that the trustees in management who have not objected to the scenes alleged to have been shot at the kalari have committed any breach of trust. When that be so, how far the plaintiff can seek for the discretionary relief of injunction against respondents 5 & 6 on the W.P.(C).No.31381 of 2009 - O 9 footing that they are members of the family and their sentiments are hurt by the objectionable scenes shot in the film require serious consideration. It is also seen that the plaintiffs had filed a previous suit as O.S.No.350 of 2008 before the Munsiff Court, Karunagappilly, against the trustees of the first defendant trust for perpetual prohibitory injunction not to permit strangers into plaint property. In that suit also they had applied for interim injunction, but, that was not granted. That suit was later dismissed as not pressed. After dismissal of that suit the present suit had been filed that too at a stage after the entire shooting of the film was over and a certificate was issued by the Central Board of Film Certification for screening the film. What was objected in the earlier suit by the plaintiffs evidently was the shooting of the film in the plaint property. Through out when the shooting of the film continued in the plaint property plaintiffs did not raise any objections was also taken note of by both the courts to conclude that the plaintiffs have no prima facie case for the relief of interim injunction. It was also found that any order of injunction as desired by the plaintiffs, if granted, would cause W.P.(C).No.31381 of 2009 - O 10 irreparable injury to respondents 5 & 6. Conclusion so formed by the two courts concurrently as evidenced by Ext.P3 order passed by the learned Sub Judge and Ext.P7 judgment passed by the learned District Judge does not suffer from any infirmity leave alone any jurisdictional infirmity warranting interference in exercise of the supervisory jurisdiction vested with this Court. I direct the learned Sub Judge to dispose the suit untrammelled by any of the observations in his Ext.P3 order or Ext.P7 of the learned District Judge and also the judgment rendered in the writ petition, in accordance with law, after affording reasonable opportunity to both sides to lead evidence in support of their respective case. Writ petition lacks merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-