SREEDHARA SHENOY Vs. THANUMALAYAN

JUDGEMENT

(1.) THE plaintiff is the appellant in this Civil miscellaneous Appeal. He is the Managing Partner of the Lekshman THEatre, ernakulam. THE 1st defendant is the proprietor of the Trivandrum Cine Film distributors. THE 2nd defendant is his representative at Ernakulam. THE 3rd defendant is the lessee of the Menaka Talkies, Ernakulam, and the 4th defendant is his local Manager. THE plaintiff and the first defendant entered into an agreement on 23. 4. 1952 for exhibiting the picture "atmasakhi" by name in the Lakshman theatre. Ext. C is the agreement. THE picture belongs to one P. Subramoniam of Trivandrum. THE first defendant is the distributing agent for that picture for Kerala. One of the terms of the agreement was that the picture should be released at the Lekshman THEatre on 1. 1. 1128 corresponding to 17. 8. 1952. It is alleged in the plaint that the plaintiff had entered into an agreement with another Film distributing concern for screening a picture, "aan" by name, in the Lakshman THEatre from 1. 8. 1952, that for some unforseen reason the picture could be released only on 7. 8. 1952, that the plaintiff was getting a good collection from that picture, that it was necessary to continue the exhibition of that picture for about two weeks more from 1. 1. 1128 and that he, therefore, requested the first defendant to postpone the date of release of "atmasakhi" some date after the 29th of August. THE 1st defendant did not agree to this. Some correspondence passed between the plaintiff and the first defendant relating to the matter. THE 1st defendant insisted on having the picture released on 1. 1. 1128 itself. He informed the plaintiff that the producer of the picture was particular that it should be released simultaneously in all centres in Kerala on 1. 1. 1128. THE plaintiff's offer to release the picture at another theatre of his, namely the Padma, on 1. 1. 1128 itself was also not accepted by the 1st defendant. THE plaintiff tried to pursuade the producer himself to agree to the postponement of the date of release of the picture. That attempt also failed. Finally, he informed the first defendant on 14. 8. 1952 that it was not possible for him to screen the picture at Lakshman THEatre on 1. 1. 1128. Ext. F or XXXVIII is the letter sent by the plaintiff to the 1st defendant. THE first defendant treated this letter as a repudiation of the contract by the plaintiff and entered into an agreement with defendants 3 and 4 on 15. 8. 1952 for screening the picture in Menaka THEatre from 1. 1. 1128. On 16. 8. 1952 the first defendant sent a telegram to the plaintiff to the effect that the contract was cancelled. Ext. G is the telegram. He also sent a letter, Ext. H on the same date informing the plaintiff that the contract stood cancelled and that the deposit made by the plaintiff was forfeited as per the terms of the contract. On the 16th itself the plaintiff filed this suit. THE prayer in the plaint is for a permanent injunction restraining defendants 1 and 2 from distributing the picture atmasakhi to anyone other than the plaintiff for exhibition at Ernakulam and cochin for two months from 1. 1. 11128, for compelling them to give the picture to the plaintiff for first exhibition and for restraining defendants 3 and 4 from exhibiting the picture in the Menaka THEatre for two months from 1. 1. 1128. THE plaintiff also filed a petition for temporary injunction. THE first defendant took notice of the injunction petition. THE court granted interim injunction for a day and posted the petition for hearing to 18. 8. 1952. From the order granting the interim injunction the first defendant preferred and appeal in the High Court on 17. 8. 1952 as C. M. A. No. 171 of 1952 and moved for stay of the order of the court below. THE plaintiff took notice of the petition and objected to the granting of the stay order. This court granted stay on condition that the first defendant would deposit a sum of Rs. 500/- on 18. 8. 1952. Accordingly, the picture was released in the Menaka THEatre on 17. 8. 1952 (1. 1. 1128 ). THE sum of Rs. 500 was deposited by the first defendant as per the order of this court. THE injunction was heard by the learned additional District Judge on 18. 8. 1952 and orders were passed on 19. 8. 1952 dismissing the petition. This appeal was filed from that order on 20. 8. 1952. THE plaintiff moved this court also for a temporary injunction till the disposal of the Civil Miscellaneous Appeal. THE defendants took notice of the petition and objected to the granting of the temporary injunction. THE petition was heard on 20. 8. 1952 itself and was dismissed by this Court. As desired by the appellant the Civil Miscellaneous Appeal was ordered to be posted on 21. 8. 1952.

(2.) THE question for consideration in this Civil miscellaneous Appeal is whether the court below exercised its discretion properly in refusing to grant the temporary injunction asked for by the plaintiff. THE granting or refusing to grant a temporary injunction is primarily a matter for the discretion of the trial court, but the discretion has to be exercised in a judicial manner according to well recognised principles. What we have to see is whether the court below has exercised its discretion in this case according to those principles.

(3.) LEARNED counsel for the appellant relied on the following passage in Kerr on Injunctions (6th Edition, Page 422): "if parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that the thing shall not be done. In such a case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience or of the amount of damage or injury, it is the specific performance by the Court of that negative bargain which the parties have made with their eyes open between themselves, unless the covenantee has, by his conduct or omissions, put himself in such an altered relation in the covenantor as to make it manifestly unjust for him to ask the Court to enforce the covenant by injunction, or the covenantee has suffered no damage by the breach of covenant and is offered an undertaking that will prevent any future damage by the continuing breach, and the granting of an injunction would inflict damage on the covenantor out of all proportion to the relief given to the covenantee. "