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, 2nd defendant is the director of a film “Oru Nalla Nal Varum” and the 3rd 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.