ORDER 39 RULES 1 & 2 – Prima facie case includes nature of suit and maintainability – No temporary Injunction, if suit not maintainable.
One of the factors to be considered by the trial Court while considering the case for temporary injunction is whether prima facie case is made out by the plaintiff. This certainly would include the nature of the suit filed and its maintainability. If, on the face of it, the suit is not maintainable, question of issuing any temporary injunction would not arise.
JUDGMENT
Shivashankar Bhat, J.
1. This Appeal is by the third defendant against an order made on I.A.III in O.S.No.10511/92, on the file of the Court of VI Addl. City Civil Judge at Bangalore. By that order, the third defendant was restrained from receiving and defendants 1 and 2 were restrained from paying the amount involved, to the third defendant,
2. According to the plaintiff, it obtained the rights in respect of a film called “Haathi Mera Saathi” under an Agreement dated 31.12.1986 from M/s Vijayalaxmi Movies at Madras, which had earlier acquired all the rights of distribution, exhibition, exploitation and negative rights including T.V. and Video Cassette rights in the said film. The film was produced earlier by M/s Devar Films. It seems that M/s Vijayalaxmi Movies leased the said rights to M/s Manjusha Films on 21.6.1976 and M/s Manjusha Films, in turn, conveyed these rights to the plaintiff under an Agreement dated 31.12.1986. Thereafter, the plaintiff corresponded with the Dooradarshan for the telecasting of the film on the National Net Work. According to the plaintiff, at one stage, the plaintiff withdrew the offer made to the Dooradarshan, but thereafter again withdrew the said withdrawal offer because the contract had been concluded by that time. On 27.6.1992, Dooradarshan did telecast the picture, In the meanwhile, according to the plaintiff, Doordarshan wrote to the plaintiff on 6th November 1989 requiring the plaintiff to produce all documents justifying the plaintiffs claim over the film including T.V., Video and Video Cassette rights on the ground that there has been a rival claim made by the third defendant. The plaintiff asserted his exclusive right over the film and pointed out that the claim of the third defendant was neither genuine nor true; it was the plaintiff who had supplied the Print for taking out a Cassette for the national telecast by the Dooradarshan (which is the second defendant in the suit) and the second defendant had got a Video Cassette out of the said Print sent by the plaintiff. We are told that this Cassette is generally referred as U-Matic Cassette. The Dooradarshan insisted that the plaintiff should send a fresh agreement from the producer of the film stating that the T.V. rights also had been given to the plaintiff. There is a reference to some
more correspondence which we need not elaborate at present. However, ultimately, the film was telecast on the National Net Work. According to the plaintiff, there has been an offer and proper acceptance and therefore there was a concluded contract enforceable at law between the plaintiff and the second defendant. This offer to telecast the picture was for a royalty of Rs. 4,00,000/- and that offer was made by the second defendant, and the plaintiff had accepted the said offer. In these circumstances, the plaint asserts that the said contract cannot be resiled from upon by any one of the parties. According to the plaintiff, the particulars of the claim made by the third defendant were not made available to the plaintiff. However, the second defendant proceeded to deny the claim of the plaintiff without giving him an opportunity of verifying the rival claim put forth and that an exparte decision was taken by the second defendant against the plaintiff rejecting the plaintiff’s claim; this is characterised as opposed to the principles of natural justice and fairness, and therefore illegal and void. The plaintiff further asserts that defendants 1 and 2 are estopped from questioning the plaintiff about his claim to have the film telecast and that the said defendants have unjustly enriched themselves at the cost of the plaintiff. Therefore, paragraph-9 of the plaint concludes stating that defendants 1 and 2 are liable to make good damages to the plaintiff in this behalf, which he estimates at Rs. 4,00,000/-. The telecasting of the film on 27th June 1992, according to the plaintiff, was in flagrant violation of the contract entered into between the plaintiff and defendants 1 and 2 at the instance of the third defendant. The steps taken to pay the royalty to the third defendant is part of this flagrant violation of the contract (vide: Paragraph 10 of the plaint). It is alleged that the plaintiff has suffered a legal injury and hence the suit is filed to enforce his just and legal entitlements. Paragraph-11 of the plaint states that the plaintiff is entitled to a mandatory injunction directing defendants 1 and 2 to pay the royalty of Rs. 4,00,000/- to the plaintiff and to none else and that the plaintiff is entitled to a permanent injunction against the third defendant not to receive the payment of any royalty from defendants 1 and 2 in respect of the film in question. The plaint contains the following prayer:
“(a) for a mandatory injunction against defendants 1 and 2 directing them to pay the sum of Rs. 4,00,000/- (Rupees four lakhs) being the consideration (royalty) agreed upon to be paid by them to the plaintiff for the telecast of the film “Haathi Mera Saathi”, to the plaintiff only and to none else;
(b) for a permanent injunction against defendants 1 and 2 directing them not to pay the consideration (royally) in respect of the film “Haathi Mere Saathi” either to defendant-3 or any others except the plaintiff;
(c) for a permanent injunction restraining the third defendant from receiving the consideration (royalty) in respect of the film “Haathi Mere Saathi” from defendants 1 and 2, and
(d) for costs and such other reliefs as this Hon’ble Court might deem fit.”
The plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short ‘the Code’), seeking an order of temporary injunction against defendants 1 and 2 not to pay the sum of Rs. 4,00,000/- to the third defendant. The prayer also includes a relief against the third defendant by restraining the third defendant from applying for or from receiving the said amount of Rs. 4,00,000/-.
3. According to the third defendant, the plaintiff is only a Film Distributor. The film in question was produced by M/s Devar Films at Madras. According to the third defendant, it obtained the T.V. rights under an Agreement dated 8.8,1989 from M/s Vijayakumari Films at Bangalore, which in turn had obtained it from the producer under an Agreement dated 11.11.1988. The case of the third defendant is that it had the exclusive T.V. rights of the film in question and therefore the plaintiff cannot claim any benefit out of the telecast made by the Dooradarshan and that the royalty will have to be paid to the third defendant and not to the plaintiff, The third defendant also questioned the format of the suit.
4. The parties filed a few documents before the trial Court in support of their respective cases. The plaintiff filed an Agreement dated 31.12,1986, under which M/s Manjusha Films-assigned the rights to the plaintiff in respect of the film. According to the plaintiff, this assignment covers the T.V. rights also. The Agreement also refers to an earlier Agreement dated 21.6,1976, under which M/s Manjusha Films obtained the rights from M/s Vijayalaxmi Movies at Madras. The Schedule to the Agreement refers to some of the distributors and the area of operation and the date of expiry of the right of distribution given to those distributors. Territories of Bombay and Bengal are referred as ‘open’. Similarly, T.V. rights, Video rights, etc., are referred as ‘open’. Clause-6 of this Agreement states that the assignee (the plaintiff) shall be entitled to transfer or assign the entire rights or a part thereof, of the picture in question. All other documents pertain to the correspondence between the second defendant and the plaintiff. Two more documents were filed on 16th July 1992, out of which one pertains to a letter from Gemini Colour Laboratory to the plaintiff dated 20th August 1979. The other letter is dated 24th February 1979 written by M/s Manjusha Films to Gemini Colour Laboratory which states that M/s Manjusha Films had agreed to transfer the picture and the sound negatives and all other materials relating to the film in question in favour of the plaintiff.
5. Six documents were filed by the third defendant, One of the documents is an Agreement dated 11.11.1988 between M/s Devar Films represented by its Managing Partner Dhandayudhapani and M/s Vijayakumari Films. Under this Agreement, the producers of the film (referred to as the lessors), granted and conferred the lease rights of T.V. rights of the film in question on the lessee, M/s Vijayakumari Films. Another document is an Agreement dated 8.8.1989, whereunder M/s Vijayakumari Films transferred their rights to the third defendant. There is also a letter written by M/s Vijayakumari Films to the third defendant on 17th June 1989 referring to the Agreement arrived at between the parties. A copy of the declaratjpn filed on behalf of M/s Devar Films stating that T.V. rights have been leased to M/s Vijayakumari Films was also filed. This declaration was signed by the aforesaid Dhandayudhapani representing M/s Devar Films. There is another declaration signed by one V. Kuppuswamy, Proprietor of M/s Vijayakumari Films, stating that the rights have been assigned to the third defendant. The third defendant also filed a copy of the letter dated 27th July 1990 written by the plaintiff to the second defendant stating that his offer regarding the telecasting of the film was withdrawn irrevocably.
6. This Appeal was referred to the Bench in view of certain Decisions, ratio of which conflicts with each other, as to the power of the Appellate Court to receive additional evidence in an appeal filed against an interlocutory order. Since the Appeal has been referred because of the said question, we consider it appropriate to decide the same in the first instance.
7. During the pendency of this Appeal, an I.A. was filed by the appellant seeking permission to produce a document, which is a copy of an Agreement dated 22.9.1973, This purports to be an Agreement between M/s Dhandayudhapani Films and M/s Vijayalaxmi Movies. The former is represented by one Chinnappa Devar being the Managing Partner of the said firm. Under this Agreement, the lessor purports to convey certain rights in respect of the film in question. However, Clause 12 thereof states that “the lessees hereby agree and confirm that the T.V. rights of the said picture “Haathi Mera Saathi” is solely vested with the lessors and the lessees have no rights whatsoever over this”. The third defendant, which is the appellant, filed an application under Order 41 Rule 27 read with Section 151 of the Code seeking Court’s permission to file this document because according to the appellant, it is this document under which M/s Vijayalaxmi Movies acquired the rights in the film in question, which was subsequently conveyed to M/s Manjusha Films, which in turn, transferred the same to the plaintiff. If this Agreement does not convey the T.V. rights at all to M/s Manjusha Films, certainly M/s Manjusha Films cannot, in turn, create any right in the plaintiff regarding the T.V. rights in respect of the film in question. The application is strenuously opposed by the plaintiff on the ground that Order 41 Rule 27 of the Code is inapplicable to an Appeal of this kind. Alternatively, it was contended that thp document itself is not reliable because it is not genuine.
9. At the thresh-hold, we have to consider the applicability of Order 41 Rule 27 of the Code or in the alternative, whether the Appellate Court has inherent power to entertain additional evidence.
10. In SANGAPPA v. NAGARAJAIAH, C.R.P. Nos. 92 & 93 of 1968 DD 20.6.1969 it was held thus:
“In interlocutory proceedings for interim injunctions, the legal position is that the Trial Court on the material placed before it must be in a position to entertain a tentative opinion that the plaintiff has shown prima facie that he was in possession of the suit property on the date of the suit and that the Appellate Court in such cases should examine only two questions: (1) Whether the opinion of the Munsiff is fairly possible on the material placed before him and (2) whether on that finding the Munsiff may be said to have exercised his discretion properly in all the circumstances of the case in granting or refusing to grant the injunction. Hence, no question of any additional evidence being adduced at the appellate stage arises.”
This was followed by another learned Judge of this Court in AJJAPPA v. SHADAKSHARAPPA, 1981(1) KLC 118. However, another learned Judge of this Court disagreed with this view in the case of IIM EMPLOYEES’ ASSOCIATION v. INDIAN INSTITUTE OF MANAGEMENT, ILR 1990 KAR 3418. But, another learned Judge preferred to follow the earliest view, in M.F.A. No. 1995/1985, M.F.A No. 1995 of 1985 decided on 13th December 1990. The principle behind the above propositions seems to be that in the appeal against an order of temporary injunction, the Appellate Court has to confine its attention to the material placed before the trial Court and the nature of the order being discretionary, normally the Appellate Court would not interfere with such an order. If the discretion is exercised unreasonably and not in a judicial manner, only then the Appellate Court should interfere with the exercise of the discretion of the trial Court. Therefore, while judging the correctness of the exercise of the discretion, no fresh material shall be considered.
11. It should be, however, noted that every Appellate Court normally decides the correctness of the decision rendered by the trial Court and the normal rule is to confine the attention to the material produced by the parties before the original Court. But, these are all Rules of procedure and will have to be understood in a manner so as to advance Justice and not to deny a person from getting an appropriate relief. There may be several instances where due to unforeseen reasons, a party may not be in a position to produce the relevant material, in such a situation, refusal to entertain such a material produced at the stage of an appeal would certainly result in denial of Justice to the party entitled to the relief. The Appeal against an order of temporary injunction is governed by the provisions of Order 43 of the Code. Rule 2 states that “the rules of Order 41 shall apply so far as may be to appeals from orders”. In other words, the provisions of Order 41, which includes provision governing the production of additional evidence, could be attracted to the appeals filed under Order 43 Rule 1 so far as may be. The words ‘so far as may be’ vest in the Appellate Court an appropriate power to consider the entertaining of an application for additional evidence. The facts and circumstances of a particular case will have to be examined, so that the Court can find out whether ultimately the discretion exercised by the trial Court should be upheld or not. The purpose of an Appeal is to see that the party entitled to the relief should be granted the relief.
12. The scope of the appellate power in the matter of interfering with the discretionary orders is brought out by the Supreme Court in PRINTERS (MYSORE) PRIVATE LTD. v. POTHAN JOSEPH, , the Supreme Court held thus:
“In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but that in exercising its discretion, the trial Court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be open to the appellate Court – and in many cases it may be its duty – to interfere with the trial Court’s exercise of discretion.”
From the above observations, it is clear that the appellate Court will be justified in interfering with the exercise of the discretionary order if the said order was made ignoring relevant facts. The relevant facts may be before the trial Court or for reasons beyond the control of the party, relevant facts may not be placed before the trial Court. The real question is whether those facts justified the making of a particular discretionary order. It is in these circumstances it has to be held that the party is entitled to place before the appellate Court the relevant evidence to bring to the notice of the Court the relevant facts. In an appropriate case, the Court itself may act upon the relevant evidence produced before it if such an evidence clinchingly concludes the issue. However, if there is any dispute about the material placed before the Court or the material placed before the Court will have to be appreciated with other materials, already on record, it would be a proper exercise of the appellate power to send back the matter to the trial Court, so that the trial Court may exercise its discretion on the entire material on record including the fresh material that is placed at the stage of appeal. In the circumstances, we are constrained to disagree with the view expressed in Sangappa’s case (supra) and other Decisions following the same.
13. In the instant case, the basis of the plaintiff’s claim is that the plaintiff has the T.V. right in the film in question. The plaintiff has relied on the Agreement dated 31.12.1986. However, the plaintiff has not produced any other anterior documents tracing the title, so as to include the T.V. rights in the said title. The copy of the Agreement now produced before us indicates that the T.V. rights were not conveyed or leased to the plaintiff by the predecessor of the plaintiff and if so, the plaintiff will not be entitled to the relief sought. Since Mr H.R. Venkataramanaiah, learned Counsel for the plaintiff, seriously questioned the genuineness of this document, it is for the trial Court to examine the same and thereafter proceed to consider the question of interim injunction afresh in case the plaintiff seeks to press this application further.
14. The trial Court has made certain observations doubting the genuineness of one of the documents filed by the third defendant by references to the date mentioned therein. This again is a matter of evidence which will have to be considered afresh by the trial Court.
Any expression of opinion by us may prejudice the rights of the parties on that aspect. Hence, we do not express any opinion in this regard. However, one of the factors to be considered by the trial Court while considering the case for temporary injunction is whether prima facie case is made out by the plaintiff. This certainly would include the nature of the suit filed and its maintainability. If, on the face of it, the suit is not maintainable, question of issuing any temporary injunction would not arise. The third defendant had raised the question of maintainability of the suit and the trial Court has left it open to be considered at a later stage (vide: Para-29 of the order of the trial Court). We do not think that this is a case where the trial Court should have postponed the consideration of the said question having regard to the very nature of the pleadings. We have summarised the plaint averments already. It looks as if the plaintiff is aggrieved by the nonpayment of the sum of Rs. 4,00,000/- to the plaintiff by the second defendant. However, the plaintiff does not seek a decree for payment of the said sum in the usual form. The plaintiff seeks only a mandatory injunction directing defendants 1 and 2 to pay the said sum to the plaintiff. To what extent such a relief is maintainable when an appropriate relief for the decree for payment is not sought, has to be considered by the trial Court before proceeding further. Admittedly, there is dispute as to the title in respect of the T.V. rights. We do not find any relief of declaration in the plaint. This also will have to be considered at the threshold by the trial Court. Since we have left open the said questions to be considered by the trial Court, we have refrained from stating further facts as the very statement by us may prejudice the rights of one or the other. Since the trial Court has failed to consider the main question before proceeding to consider the case for an order of temporary injunction, we are constrained to set aside the order of the trial Court under Appeal.
15. Having regard to the nature of the dispute and the questions to be considered, we arc of the view that it is most appropriate for the trial Court to proceed to consider the preliminary issue as above and thereafter, if the suit is maintainable, proceed to take up the trial itself. To safeguard the interest of both the parties, we consider it appropriate to direct the second defendant – Dooradarshan to deposit the sum of Rs. 4,00,000/- in a Nationalised Bank so that it can earn
interest and the interest also could be paid over to the successful party.
16. However, Mrs. Nagarathna, learned Counsel for the appellant (third defendant), contended that the third defendant is deprived of the money all these months without any interest and therefore the plaintiff should be put on terms by imposing a liability to pay interest upto the date of deposit in the Bank. This is a matter for the trial Court to consider at the time of disposing of the suit. Having regard to the facts that may be found by the trial Court, if it is found that the suit is a frivolous suit and the third defendant has suffered by the delay, the trail Court may direct the plaintiff to pay appropriate interest on this sum of Rs. 4,00,000/- or any other sum that may be due to the third defendant.
17. In the result, this Appeal is allowed and the order of the trial Court is set aside. The second defendant is directed to deposit the sum of Rs. 4,00,000/- in a Nationalised Bank within four weeks from today. Such deposit shall be made so as to fetch the maximum Bank interest and shall be kept alive during the pendency of the suit. The trial Court is directed to expedite the decision on the preliminary issue and thereafter, take up the trial expeditiously. Defendant 1 and 2 are directed to file their written statement, if any, within four weeks from today. However, the trial Court need not wait for the said written statement to decide the question of maintainability of the suit, on the basis of the plaint averments; said matter shall be decided within six weeks from today. Appeal is allowed accordingly.