IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.09.2011 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A.No.114 of 2004 Chatrapathy Shanmugham No.23,Velayudha Street, Thiruvottiyur, Madras-19. ..Appellant/Plaintiff Vs. 1. S.Rangarajan(deceased), No.7, Parthasarathy garden, Eldams Road, Madras-18. 2. Vali, No.12, 1st Street, at Karpagam Avenu, Rangarajapuram, Madras-28. 3. Jothi Pandiyan, No.54, 100 feet Vivenkanada Road, Vadapalani, Madras-26 4. Shantha Rangarajan, W/o Late Rangarajan 5. Ramesh Rangarajan, S/o Late. Rangarajan 6. Mrs.Vijaya Arun, D/o Late S.Rangarajan 7. Akila Aiyengar, D/o Late S.Rangarajan Rr4 to 7 are residing at No.7, Parthasarathy Garden, Eldaws Road, Chennai-18 https://hcservices.ecourts.gov.in/hcservices/ R4 to R7 brought on record as Legal representatives of the deceased R1 vide order of Court dated 4.11.2009 made in CMP.Nos.1157 to 1159/2009 ..Respondents Appeal filed under Order 36 Rule 1 of the Original side Rules r/w clause 15 of the letters patent against the judgment and decree dated 28.8.2003 in C.S.No.161 of 1993. For Appellant : Mr.C.Chinna Vyran For Respondents : Mr.Krishnasamy, Senior counsel for Mr.C.Ramesh for R1,R2 and R4 to A7 For 3rd Respondent: Dismissed J U D G M E N T V.PERIYA KARUPPIAH.,J. This appeal is directed against the judgment and decree by the learned single Judge passed in the suit, C.S.No.161 of 1993 dated 28.8.2003. The suit was filed praying for declaration that the plaintiff is the absolute owner of the copy right of the play 'Naai Vaal' and for consequential permanent injunction. 2. The brief facts of the case of the plaintiff are as follows: The play 'Naai Vaal' is the original creation of the plaintiff and he is the original owner of the said play. By proceedings dated 4.1.1984, the script of the play was approved by the Commissioner of Police, Madras. The play was staged at 'Swami Sankaradas Kalai Arangam', Madras on the auspices day in Annai Sathya Nataka Manram, presented by Vetrivel Kalaikulu on 8.3.1984. The plaintiff claims that he is the absolute owner of the copy right of the said story and the script. A Cinamatograph Tamil film titled 'Ore Oru Gramathile' was produced by the 1st defendant and directed by the 3rd defendant. The theme of story of the said film is the same as that of the approved script of the plaintiff's play 'Naai Vaal'. The story of the said film is purported to have been written by the 2nd defendant. The plaintiff came to know that the defendants have violated the copy right of his drama. By notice dated 1.10.1990, the plaintiff claimed the collections and earnings made by the defendants from exhibiting the said film. Since the same has not been complied with https://hcservices.ecourts.gov.in/hcservices/ by the defendant, the suit came to be filed seeking for the above said declaration and permanent injunction. 3. In the written statement filed by the 1st defendant, the following averments were made. The film, 'Ore Oru Gramathile' was produced by the first defendant and a certificate has also been issued to the said film on 07.12.1987. Before the release of the said film, certain writ petitions were filed before this Court, alleging that the story of the film was against certain sections of the Society and it was also against the reservation policy, adopted by the Government of India and the Government of Tamilnadu. The writ petitioners have also sought for revocation of the Censor Certificate granted to the film and to ban the release of the film. Though the writ petitions were dismissed by the learned single Judge, on appeal, a Division Bench of this Court allowed the writ petitions and revoked the Censor Certificate. The first defendant preferred an appeal before the Honourable Supreme Court against the order of the Division Bench of this Court and by judgment dated 30.03.1989, the judgment of the Division Bench was set aside, granting permission to release the said film and the same was released all over the State on 19.05.1989. The story of the film and the controversies raised therein were all published in various newspapers and magazines and it had received wide publicity and the film was also given a national award. The clippings from the film were also exhibited at the time of presentation of the National Award and they were also telecasted by Doordarshan. Therefore, the claim of the plaintiff that he came to know about the story of the 1st defendant's film only in January 1990, cannot be believed. The plaintiff has filed the suit only in the year 1993. Therefore, the plaintiff is not entitled to seek any remedy before this Court due to the inordinate delay in filing the suit. The defendant was assigned distribution rights and video rights to various 3rd parties even before the completion of the film. The film was released all over the State of Tamilnadu on 19.5.1989. Under such circumstances, the plaintiff cannot seek the above reliefs so many years after the exploitation of the film. It is stated that the film 'Ore Oru Gramathile' was produced by the 1st defendant and the story was written by the 2nd defendant and the film was directed by the 3rd defendant. There is absolutely no similarities between the story of the play 'Naai Vaal' and the story of the film 'Ore Oru Gramathile'. It is stated that the script of the 1st defendant and the plaintiff's play would differ in all material particulars and there is no similarity between the two and the plaintiff has no basis to claim that the defendants have infringed his copy right. Hence, the first defendant has prayed for dismissal of the suit. 4. The averments in the written statement of the 2nd defendant are as follows: The plaintiff is not entitled to maintain the suit as he has not given the a comparative table in the plaint as to how the story in https://hcservices.ecourts.gov.in/hcservices/ the plaintiff play and the story in the film are one and the same. Hence, there can be no copy right in respect of the theme. There is also delay on the part of the plaintiff. Therefore, the suit is liable to be dismissed. 5. On the aforesaid pleadings, the learned single Judge framed seven issues as listed hereunder: (1) Is the plaintiff entitled to a declaration that he is the absolute owner of the coy right of the play 'Naai Vaal'? (2) Is the plaintiff entitled to a permanent injunction restraining the defendants form in any manner infringing the copy right by way of exhibition and exploitation of the cinematograph film 'Ore Oru Gramathile' as claimed by the plaintiff? (3) Is the relief of permanent injunction sought for by the plaintiff barred by limitation since the suit has not been filed within three years from the date of release of the film all over the State of Tamilnadu on 19.5.1989? (4) Is the plaintiff disentitled from seeking the equitable reliefs of declaration and injunction on account of the fact that the suit had been filed after an inordinate delay? (5) Is there any similarity between the script of the plaintiff's play 'Naai Vaal' and the script of the film 'Ore Oru Gramathile' produced by the 1st defendant? (6) Is the plaintiff entitled to the relief of rendition of true and correct accounts of the collections and profits made from the exploitation of the fi8lm 'Ore Oru Gramathile'? (7) What reliefs are the parties entitled to? 6. The learned single Judge had entered trial and examined five witnesses of the plaintiff viz., P.Ws. 1 to 5 and admitted Exs. P1 to P6 in support of his case. The second defendant was examined as D.W.1 and yet another witness was examined by the defendants as D.W.2 and Exs.D1 to D5 were produced. 7. The learned single Judge had applied and appraised the evidence on the issued framed and had come to the conclusion of favouring the plaintiff in respect of Issue No.1 and partly favouring the plaintiff in respect of the first part of the Issue No.2 and negatived the second part and answered the 5th issue also against the plaintiff. As regards issue Nos. 3 and 4 also, the learned single Judge had answered against the plaintiff. In terms of the answers given in those issues, Issue No.6 was also answered against the plaintiff and the suit was decreed in favour of the plaintiff in respect of declaration and the permanent injunction was granted https://hcservices.ecourts.gov.in/hcservices/ against the defendants from in any way interfering with the plaintiff rights to exhibit the play 'Naai Vaal' only. In other respects, the suit was dismissed without costs. 8. Aggrieved by the judgment and decree passed by the learned single Judge, the plaintiff has preferred the present appeal. 9. We, heard Mr.Chinna Vyran, learned counsel for the applicant/plaintiff and Mr.Krishnasamy, learned senior counsel appearing on behalf of Mr.C.Ramesh, learned counsel for the first, second and fourth to seventh respondents. 10. Learned counsel for the appellant/plaintiff would submit in his arguments that the suit was filed by the plaintiff for declaration of his play namely 'Naai Vaal' as he was the author of the said play and thus he became the absolute owner of the play and for permanent injunction against the defendants from in any manner infringing the said ownership of the copyright by exhibiting or exploiting the cinemotograph film 'Ore Oru Gramathile' which was the copy of the play 'Nai Vaal' created by the plaintiff and also for rendition of true and correct accounts of the collection of profits through the exploitation of the said film and for costs. But the suit was decreed in respect of declaration of the plaintiff's copyright over the play 'Naai vaal' but permanent injunction was granted restraining the defendants from in any way interfering with the plaintiffs right of exhibiting the play 'Naai vaal' which was not claimed by the plaintiff. He would also submit that the remaining prayers were dismissed as contrary to law, even though the plaintiff was found to be the owner of the copyright of the play 'Naai Vaal'. 11. He would further submit that the learned single Judge did not compare the story narrated in "Ore Oru Gramathile" film with the sequences of the play 'Naai Vaal" but had come to the conclusion that it was not the copyright of the plaintiff but without such comparison, it was decided that the plaintiff's play 'Naai Vaal' was not copied nor the copyright of the plaintiff was infringed through the film "Ore Oru Gramathile" taken by the defendants. He would further submit that the script of the play 'Naai Vaal" produced in Ex.P1 would go to show that 21 scenes from the said play were copied in 23 scenes of the said cinema "Ore Oru Gramathile" by the defendants, but it was not taken note of, by the learned single Judge. He would also submit that the similarities of the said film "Ore Oru Gramathile" with the play "Naai Vaal" was above 95% and only 5% of the dissimilarities could be seen in the said film. He would also submit that the script of the said cinema was not produced by the defendants and in the absence of the scripts how the learned single Judge could have compared the scripts of the drama with the said film. He would further submit that the evidence adduced on the side of the plaintiff would go to show that the second defendant was present at the exhibition of drama 'Naai Vaal' on 8.3.1984 but the https://hcservices.ecourts.gov.in/hcservices/ learned single Judge disbelieved the evidence by saying that the actor who was on the role of playing the drama ought to have been examined for the said purpose. He would further submit that the principle laid down by the Honourable Apex Court reported in R.G.Anand vs. M/s. Delux Films reported in AIR 1978 SC 1613 was misapplied to the facts of the case and the plaintiff is entitled to protect his copyright over the said drama 'Naai Vaal' by seeking injunction against the defendants in not exhibiting the film "Ore Oru Gramathile" hereinafter and also seeking for accounts of its income. 12. He would further submit that the ideas or messages attempted to have conveyed through the said drama 'Naai Vaal' viz., the evils of demanding of dowry, drinking alcohol and the non-education of the children were taken in the said cinema along with the menace of casteism and reservation on caste basis, even though the people of that community are affluent and rich whereas the people from the forward community were not affluent and poor. He would submit that the same ideology has been adopted in the film 'Ore Oru Gramathile" and the scripts of the film are almost the copied version of the play 'Naai Vaal". 13. He would further submit that the non production of the script of the film "Ore Oru Gramathile" for comparison should have been taken by the learned single Judge as adverse inference against the defendants and should have come to the conclusion in favour of the plaintiff. He would further submit that the DVD produced, if exhibited and the scripts spoken by the characters if compared with the scripts of the drama 'Naai Vaal", it would certainly disclose the copying of the scripts and the scribe's themes and ideologies of the drama "Naai Vaal" in the said film "Ore Oru Gramathile". He would therefore request the Court to grant permanent injunction against the defendants from exhibiting the said film taken by the defendants as it is the copied version of the drama "Naai Vaal' from most of its scenes and also to direct the defendants to render accounts to the income from exploiting the said film from the date of its release till date. He would also request this Court to set aside the judgment and decree passed by the learned single Judge insofar as it is against the reliefs sought for by the plaintiff and to allow the appeal and thereby to decree the suit as sought for in full. 14. Learned senior counsel for the respondents would submit in his argument that the evidence adduced by the plaintiff did not prove that the second defendant attended the said exhibition of the drama "Naai Vaal" on 8.3.1984 and when such important pleading of the plaintiff was not proved, there is no question of any copying of the scripts of 'Naai Vaal" by the second defendant. He would further submit in his arguments that the film "Ore Oru Gramathile" was produced by the second defendant by writing its story and the script of the said film in the year 1986 and the film was subjected to litigations regarding issuance of censor certificates and the second https://hcservices.ecourts.gov.in/hcservices/ defendant took the matter before the Honourable Apex Court and it was ordered in favour of the second defendant and the film was also given with censor certificate and it was released in the year 1989 and it also won the Central Government Award and other Awards, even though it was not commercially a successful film. He would further submit that the said film was telecaste in Doordharshan in the year 1992 and it was viewed by the viewers almost throughout the world and the plaintiff did not come to Court with all these pleas immediately, or before its release but had come to Court only in August, 1992. He would also submit that the story and other important actors who played in the roles were published in the newspaper and the basic idea of the said film and the crux of the story were already spoken and written by the second defendant even prior to 1984 and the second defendant had also discussed the said ideas with the then Chief Minister M.G.R. and it could not be said that the idea has born only in the mind of the plaintiff and could not be with others. He would also submit that when the whole country is facing the same problem, at that stage, it could be the thought of everybody and that too, of the second defendant and therefore, he had introduced his idea of reservation to the poor people of forward communities to the exclusion of the rich backward class community people in the appointments of Government. He would also submit that the obtaining of the false caste certificate messaged in the film was different from that of the drama "Naai Vaal" and almost all the sequences or scenes of the drama were not similar in the film. He would further submit that the lady who hailed from the forward community was shown to have obtained a false caste certificate as belonged to scheduled caste for the purpose of adorning a higher post whereas the script of the drama "Naai Vaal" would show that a boy who himself obtained a false caste certificate to get a job for some other reasons. He would also submit that various sequences of the drama are different and the characters of the drama in the name of Naidu and yet another person are not available in the film and it is entirely a different story with different ideas. The sequences are different in the film when they are compared with the script of the drama. No songs were played in the drama whereas songs are available with effective meanings in the film. He would further submit that the end of the drama was a tragedy, whereas the heroine in the film who obtained the false caste certificate was approved by the Court itself as per the wishes of the people. He would further submit that the learned single Judge had placed and discussed the story of the film as told by the Supreme Court in its judgment since the sequences cannot be different from the narration of the sequences as per the judgment of the Honourable Apex Court. He would further submit in his arguments that the non-production of the scripts will not in any way affect the defence of the defendants since the DVD of the film has been produced and the learned single Judge could have seen the film and understood the scripts of the film. He would further submit in his arguments that even otherwise if the theme of the drama be the theme of the film, it would not affect the copyright of the plaintiff https://hcservices.ecourts.gov.in/hcservices/ since no script was copied from the drama for the film. He would also submit that the say of expression in the film is entirely different with the way expressed in the scripts of drama "Naai Vaal" since those characters of the drama "Naai Vaal" are not the characters in the film produced by the defendants. He would further submit that the defendants had no opportunity to see the said drama "Naai Vaal" which was exhibited only one time and therefore, there could not be any possibility of infringing the copyright of the plaintiff's drama "Naai Vaal". He would further submit that it is not the case of the plaintiff that he had published the scripts of drama "Naai Vaal" and it was taken by the second defendant from such publication and copied the said film. The pleadings of the plaintiff do not speak about the possibility of knowing the script of the drama by the second defendant except through viewing it on 8.3.1984 which was not proved by the plaintiff. He would further submit in his argument that the judgment of the Honourable Apex Court reported in AIR 1978 SC 1633 would go to show that there cannot be any infringement of copyright when the theme are similar and the scripts are not similar in nature. The learned single Judge has correctly come to the conclusion of upholding the copyrights of the plaintiff in the drama "Naai Vaal" and had disagreed with the request of the plaintiff to grant permanent injunction against the defendants in exhibiting the film "Ore Oru Gramathile". Therefore, the appeal filed by the appellant may be dismissed by confirming the judgment and decree passed by the learned single Judge. 15. On hearing the arguments and perusal of the evidence, documents produced by both parties, the judgment and decree passed by the learned single Judge and the grounds raised in the memorandum of appeal, we could see the following points emerged for consideration in this appeal. "1) Whether the scripts of the film "Ore Oru Gramathile" produced by the first defendant has any similarity with the scripts of the plaintiff's play "Naai Vaal"? 2) Whether the plaintiff is entitled to a permanent injunction restraining the defendants from in any manner infringing the copyright by exhibiting and exploiting the cinematograph film "Ore Oru Gramathile" as claimed by him ? 3) Whether the judgment and decree passed by the learned single Judge is interferable? 4) Is the appeal filed by the appellant/plaintiff, allowable? 5) To what relief?" 16. For convenience, the ranks of the parties in the suit are being maintained in this judgement. https://hcservices.ecourts.gov.in/hcservices/ 17. Point Nos.1 and 2: The case of the plaintiff is that the plaintiff is the absolute owner of the copyright of the play titled 'Naai Vaal', who sought for declaration of such right and for permanent injunction against the defendants from in any manner infringing the said copy either by way of exhibiting and exploiting the cinematograph film 'Ore Oru Gramathile' or otherwise, and for rendering true and correct accounts of the collection and profits earned from the exploitation of the said cinematograph film 'Ore Oru Gramathile' and to pay the plaintiff such collections and profits. After the full fledged trial the suit was decreed by the learned single Judge to a limited extent that the plaintiff was entitled for declaration as sought for and for permanent injunction, regarding the infringing of the copyright of the scripts of the play 'Naai Vaal'. The other prayers asked for permanent injunction restraining the exhibition and exploitation of the cinematograph film 'Ore Oru Gramathile' against the defendant and for the rendition of accounts and payment of collection and profits to the plaintiff were rejected by the learned single Judge. Aggrieved by the rejection of the said prayers sought for, the plaintiff has preferred the present appeal. 18. The grievance of the plaintiff was that he is the owner of the copyrights of the scripts of the play 'Naai Vaal' to which he authored the play and had performed the play on 08.03.1984 and the script contain a very effective theme that even though the rich people in backward community are given education and employment, there are poor people in forward caste and they are not given preference in education and employment and that the employment should be given according to the qualification and not based on the caste. The said theme was stated to have repeated in the said film 'Ore Oru Gramathile' which was produced by the second defendant along with other defendants 1 and 3. The plaintiff's further case was that the scripts and sequences of the play 'Naai Vaal' were copied by the second defendant in the film 'Ore Oru Gramathile' on several occasions and the cinematograph film 'Ore Oru Gramathile' is nothing but a copy of the scripts of the play 'Naai Vaal'. The plaintiff examined himself as P.W.1 and also examined one Mani, Mr.S.Bharathi and Mr.Veerappan and one Kamala as P.Ws 2 to 5 and had also produced Exs.P1 to P5 in support of his case. 19. According to the evidence of P.W.1, the second defendant had copied the script of the play 'Naai Vaal' and had produced the film 'Ore Oru Gramathile'. In his evidence he would speak to the effect that- " The story 'Naai Vaal' is based on a village. In that village the people are treated as slaves. The same story was copied in the film 'Ore Oru Gramathile'. The story is based on the poems of Bharathiyar, stating that there are no caste. The defendants have copied the same in their film. In that https://hcservices.ecourts.gov.in/hcservices/ village, I have shown some natural calamities taken place which were repeated in