IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 AS. No. 311 of 1999(C) ------------------------- [ OS. NO.26/1995 of THE FIRST ADDL.DISTRICT COURT, ERNAKULAM ] .................... APPELLANT: -------------- ABBAS KAROLI, AGED 24 YEARS, S/O. KUNJAN PILLAI, KAROLI HOUSE, VENGOLA P.O, VENGOLA VILLAGE, KUNNATHUNADU TALUK BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT(S): -------------------- 1. HAMSA RAFI AGED ABOUT 34 YEARS, CHONALIPARAMBIL HOUSE, KOWSALLYA NAGAR VICAS ROAD, ELAMAKKARA P.O, KANAYANNOOR TALUK. 2. MECCARTIN, S/O. MATHEW AGED ABOUT 35 YEARS, MANJUMMAL O.O, ELOOR, ERNAKULAM DISTRICT. 3. APPACHAN, NEW SAGA FILMS, PULLEPPADY, ERNAKULAM, KOCHI. ADV. SRI.KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S. NO. 311 OF 1999 ---------------------------------------- DATED THIS THE 8th DAY OF JULY 2009 JUDGMENT This Appeal is filed by the Plaintiff in O.S No.26/1995 challenging the judgment and decree of the First Additional District Judge, Ernakulam dated 31-10-1998, dismissing the Suit. 2. The suit was filed for declaration and injunction. Respondents 1 to 3 are the defendants in the Suit. 3. According to the Appellant/Plaintiff, he is a story writer. Defendants 1 and 2 are film Directors and script writers while the 3rd defendant is a film producer. The 3rd defendant has produced a film, “PUTHUKOTTAYILE PUTHUMANAVALAN”. The Plaintiff alleges that the film was produced based on a story “ Aajanma Moham” written by him. The film was directed by defendants 1 and 2. 4. According to the Plaintiff, on 22-7-1994, the Plaintiff had handed over the manuscripts of four stories viz. 'Aniyan Haji Chettan Haji', 'Mangalya Soudham', 'Kanaponnu' and 'Aajanma Moham' to the 1st defendant for making films. A.S. NO.311 OF 1999 2 When the Plaintiff made enquiries with the 1st defendant as to whether any film was made utilizing the said stories, the 1st defendant returned the manuscripts to him. However, subsequently the films 'Aniyan Bava Chettan Bava', 'Mangalya Sootram' and 'Adyathe Kanmani' were produced based on the stories written by the Plaintiff. Defendants 1 and 2 are the directors and script writers of those films. The Plaintiff has alleged that it was without the consent and authority of the Plaintiff that his stories were used to produce films. Therefore, the Plaintiff filed O.S No.1/95, OS.No.10/95 and OS No.15/95 against defendants 1 and 2 and others, all of which are pending (subsequently, all the suits are admitted to have been dismissed). Based on the Plaintiff's story 'Aajanma Moham', the defendants have produced and directed the film 'PUTHUKOTTAYILE PUTHUMANAVALAN', without the consent of the Plaintiff. Therefore, they are alleged to have violated the copyright of the Plaintiff over the story. It is further alleged in the Plaint that, the defendants were trying to release the film during the Christmas Season in 1995. The Plaintiff A.S. NO.311 OF 1999 3 therefore prayed for a decree of permanent injunction restraining the defendants from releasing and exhibiting the film. The Plaintiff also prayed for a declaration that the said film is based on a story written by him. 5. The suit was contested by defendants 1 and 2 who filed a joint written statement. According to the said defendants, the Plaint allegation that the Plaintiff was a story writer and that he had handed over the manuscripts of four stories to the 1st defendant are false. The Plaintiff had approached defendants 1 and 2 with a request for being given a minor role in the film 'Aniyan Bava Chettan Bava' directed by defendants 1 and 2. However he was turned away by defendants 1 and 2 saying that there was no suitable role for him in that film. The Plaintiff became angry and is on enimical terms with defendants 1 and 2 for the above reason. OS 1/95, OS 10/95 and OS 15/95 were filed by the Plaintiff with ulterior motives and malafide intentions. They denied that the film, 'Puthukottayile Puthumanavalan' was produced on the basis of the story, Aajanma Moham, written by the Plaintiff. They contended that the story of that film A.S. NO.311 OF 1999 4 was published in a film magazine long before the release of the film. Therefore, the Plaintiff might have copied it and written his story 'Aajanma Moham' after making slight changes in the story. The film, 'Puthukottayile Puthumanavalan' has already been released and exhibited in theatres. The suit therefore, had become infructuous and the Plaintiff was not entitled to the reliefs claimed in the suit. On the above contentions they prayed for dismissal of the suit. 6. The written statement of defendants 1 and 2 was filed on 5-8-1997. Thereafter issues were raised on 18-7-2008. The fourth issue that raised is; “whether the suit has become infructuous?” The suit was posted for hearing on issue No.4 by the Court below. After hearing the contesting parties on the preliminary issue, the Court found that the relief of injunction had become infructuous in view of the fact that the film 'Puthukottayile Puthumanavalan' had already been released and was exhibited for more than one year and its exhibition at major centres was almost over. The Court A.S. NO.311 OF 1999 5 below therefore found that the relief of declaration without consequential relief was not maintainable. The suit was dismissed. It is the said judgment and decree of the Court below that are challenged in the above appeal. 7. I have heard the learned Counsel appearing for the contesting parties. I have also gone through the records of the case. 8. According to the Counsel for the Appellant, the Court below seriously went wrong in dismissing the suit on the preliminary point raised by it, without giving an opportunity to the Plaintiff to adduce evidence. It is further pointed out that the Plaintiff had filed I.A No.1686/1998, a petition for amendment of the plaint by including a prayer for recovery of damages from the defendants. However, the Petition was dismissed by the Court below on 2-11-2008 after pronouncement of the judgment appealed against. Therefore, the Counsel for the appellant prays for setting aside the judgment of the Court below and a remand of the entire matter for the purpose of enabling a decision on merits. A.S. NO.311 OF 1999 6 9. The Counsel for Respondents 1 and 2 on the other hand pointed out that the suit was nothing but an abuse of the process of this Court. The story that is alleged to have been written by the Plaintiff had appeared in the film magazines before the release of the film, 'Puthukottayile Puthumanavalan' and therefore, was known to all. The Plaintiff has apparently made some minor alteration in the story and has filed the suit. It is also contended that they had filed written statement to the suit setting out the true facts and pointing out that the film 'Puthukottayile Puthumanavalan' had already been released, rendering the suit infructuous. However, no petition for amendment of the plaint was filed by the Plaintiff which shows the lack of earnestness on his part, in pursuing the claim. The suit was filed in the year 1995 and no purpose would be served by a remand at this length of time, it is contended. Therefore, the Counsel for Respondents 1 and 2 prays for dismissal of the appeal. 10. The Point that arise for consideration is ; “Whether the finding of the Court below A.S. NO.311 OF 1999 7 that the suit is infructuous is justified in the facts and circumstances of the case?” 11. The Plaintiff had filed the suit for the relief of declaration and injunction. The main relief in the suit was a relief of injunction restraining the defendants from exhibiting the film ' Puthukottayile Puthumanavalan' at video parlours, theatres or houses through vedio cassettes, being based on the story 'Aajanma Moham' written by the Plaintiff. A relief of declaration to the effect that the film was based on the said story of the Plaintiff was also sought. The Suit was contested by defendants 1 and 2 by filing written statement on 5-8-1997. In para.5 of the written statement it is the specific contention of defendants 1 and 2 that the film 'Puthukottayile Puthumanavalan' had already been released in several centres all over Kerala and that therefore, the prayer to restrain the exhibition of the film had become infructuous. It is to be noted that, in spite of the specific contention taken in the written statement, no further action was initiated by the Plaintiff to make suitable amendments to A.S. NO.311 OF 1999 8 the plaint. Thereafter, almost an year after the filing of the written statement, the Court below is seen to have framed issues in the suit on 18-7-1998. One of the issues raised is whether the suit has become infructuous and the case was posted for hearing on the said preliminary issue. Subsquently, after a few more adjournments, the suit was heard on 22-10-1998 and judgment was pronounced on 31-10-1998. It is during the period after judgment was reserved but, just before the judgment was pronounced, that the petition for amendment, I.A No.1686/98 was filed on 28-10-1998. It is pertinent to note that the petition for amendment was filed without any petition for re-opening the case. Therefore, the proceedings of the court below shows that the petition was taken up for orders by the court below only on 2-11-1998 after pronouncement of the judgment appealed against. It is specifically pointed out in the judgment under appeal that no petition for amendment of the plaint had been filed, as on the date of pronouncement of the judgment. It is therefore, clear that filing of the amendment petition had not been brought to the notice of A.S. NO.311 OF 1999 9 the court before the judgment was pronounced. 12. In the facts and circumstances narrated above, the court below cannot be found fault with for having dismissed the suit. The conduct of Appellant/Plaintiff does not show that he had been conducting the case with the due diligence and care that is expected of a litigant interested in earnestly pursuing his cause. Though the Counsel for the appellant has prayed for another opportunity to prove his case by adducing evidence and has sought for a remand of the entire matter, I do not think this is a fit case in which a remand is necessary. The suit is of the year 1995 and the appeal is of the year 1999, I don't think it is in the interests of justice to remand the matter at this length of time. In view of the above, the appeal fails and is dismissed without cost. K. SURENDRA MOHAN JUDGE pkk A.S. NO.311 OF 1999 10 pkk