CIVIC CHANDRAN Vs. AMMINI AMMA

JUDGEMENT

(1.) THE staging of drama "ningal Enne communistakki" (here in after referred to as 'the Counter drama') written by appellant No. 1 Mr. Civic Chandran has been restrained by an interlocutory order of injunction issued by the learned Additional District Judge-I, mavelikarain O. S. 1/1995 pending before him. THE ground on which the order has been issued is that the staging of the said drama would prima facie constitute infringement of the copy right of the famous drama "ningal Enne communistakki" (hereinafter referred to as "drama") written by late Mr. Thoppil Bhasi, one of the well known playwrights whose legal representatives are the plaintiffs in the suit and the respondents in the appeal. Aggrieved by the order, defendants 1,4 and 5 have filed this appeal. THE question to be considered is whether the order under challenge is legally sustainable in the facts and circumstances of the case and in the light of the legal principles required to be followed while granting interlocutory order of injunction in cases like the one on hand.

(2.) BRIEFLY stated, the relevant facts are thus: "ningal enne Communistakki" is a well known drama written in 1952 by late Thoppil bhasi, one of the famous Malayalam playwright who has received some prestigious awards for his literary skill as a playwright. According to plaintiffs, the said drama dealt with some of the burning social and political problems of those days specially espoused by the Communist Party of India before its split. The drama had considerably aided the undivided Communist Party of India to come to power in Kerala in 1957 Assembly Elections. The realistic theme and songs of the said drama attracted and influenced large audience enormously. Some of the characters of the drama like "mala" and "karumpan" had become immortal. The drama had already been played in more than 10,000 stages and was widely appreciated throughout the Stale and outside and is still capable of attracting large audience. It was being staged by the 6th defendant k. P. A. C (Kerala People's Art Club), a famous Arts Club on the basis of the permission originally given by Thoppil Bhasi and subsequently by the respondents. All the rights in publishing and staging of the drama were reseverd by Thoppil Bhasi and after his death, stand vested with the plaintiffs. According to plaintiffs, the 1st defendant has "fabricated" another drama 'ningal Are Communistakki', styling it as a counter drama to the drama of Thoppil Bhasi and had published the same in 1995 in the annual issue of "india Today (Malayalam) which is owned by the 2nd defendant, a private company whose executive Director, Printer and Publisher is the 3rd defendant. The 1st defendant had copied substantial portions of the drama with some comments here and there in his counter drama. The characters and dialogues in the drama are also reproduced as such in the counter drama. Such copying and reproduction are made without any bonafides and with intention of taking undue advantage of the creative talent and labour of Thoppil which is illegal and violative of the provisions of the Copy right Act. Further it was alleged that through the so-called counter drama, an attempt has been made by the 1st defendant to denegrade and defame Mr. Thoppil Bhasi. Defendents 4 and 5, the president and Secretary of a drama troop by name 'rangabhasha' are making large scale preparations to stage the counter drama at various centres. In the circumstances, the plaintiffs have prayed for a perpetual injunction against defendants 1 to 3 restaining them from publishing the counter drama any more and a perpetual injunction against defendant 1,4 and 5 restraining them from staging the counter drama. Plaintiffs have also prayed for damages from defendants 1 to 3 for publishing the counter drama in the literary annual edition of "india Today" which is owned by the 2nd defendant, a private Limited Company whose Executive Director, Printer and Publisher is the 3rd defendant.

(3.) BOTH sides have reiterated before me their respective contentions raised before the court below while arguing the appeal. Further, spirit A. X. Varghese, the learned counsel for the appellants has submitted that while granting temporary injunction, the learned judge has not even adverted to the important aspects of irreparable injury and the balance of convenience and as such the order is unsustainable in law. It was also pointed out that there is a Mr chance of the defence, pica of 'fair dealing' being accepted and as such no injunction should have been ordered taking note of the irreparable loss and injury likely to be caused to the appellants by the grant of temporary injunction. On the other hand, the learned counsel for the respondents Shri achutha Kurup had submitted that being an appeal against an interim order passed in a pending suit unless it is found, that the order is totally illegal or perverse, this court while exercising the appellate jurisdiction will not normally disturb the discretion exercised by the lower court while passing the impugned order restraining the staging of the counter drama. The balance of convenience is in keeping the status quo which has continued from 22. 8. 1995 till the disposal of the suit by the trial court. As such there may be a direction to the trial court to dispose of the suit as early as possible keeping alive the order of injunction till the date of disposal of the suit, was the submission of the learned counsel 4or the respondent.