Dismissed

R.Madhesh v. Kasuhik Movies

Madras HC10 Dec 2014A/5906/2014

Case brief

AI extract

What is this about?

In a suit for copyright declaration regarding films "MADUREY" and "EVADAITHE NEKENDI", the plaintiff sought an interim order to view and scrutinize the films to prove infringement. The court dismissed the application, holding that Order 18 Rule 17 CPC cannot be used belatedly to fill evidence gaps and the plaintiff failed to produce the films as exhibits.

What did the court decide?

Application for direction to view and scrutinize the films "MADUREY" and "EVADAITHE NEKENDI" was dismissed.

R.Madhesh Vs Kasuhik Movies — Intellectual Property | Madras HC (2014)

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Application No. 5906 of 2014 in

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C.S. No. 471 of 2007

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PUSHPA SATHYANARAYANA, J.

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Pending suit for declaration that he is the absolute owner of the copy right of the film “MADUREY” and for permanent injunction restraining the defendants 1 to 3 from in any manner claiming any right, alienating, screening, exploiting or disposing of the rights of the film, the plaintiff has come up with this application seeking an interim order for viewing / scrutinizing the subject matter of the suit films “MADURAY” (Tamil) as well as “EVADAITHE NEKENDI” (Telugu) to reach constructive conclusion as to whether the defendants 1 to 3 / respondents 1 to 3 had copied and utilised his film “MADUREY” in their commercial movie “EVADAITHE NEKENDI”, violating the provisions of the Copy Right Act.

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From the materials available on record, it is seen that the applicant as plaintiff filed a suit stating that the multi-starred Tamil film “MADUREY” was a super hit in the Tamil Film Industry and he was the absolute copy right owner of the same. According to the applicant, he, being the absolute copy right owner including the songs, scenes,

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dialogues, story, screenplay, etc., was contemplating to do the Telugu dubbing version of the same and while so, the defendants had illegally dubbed the Tamil version of the film “MADUREY” into Telugu version and made several Crores of money titling the same as “EVADAITHE NEKENDI”. Hence, the suit for declaration of the copy right, ownership and for permanent injunction against the defendants from screening the said movie.

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Mr. K. Srinivasan, who is working as Accountant with the plaintiff, has filed the proof affidavit and on the basis of authorisation letter to depose on behalf of the plaintiff, he was examined as P.W.1 and marked Exs. P.1 to P.9. On the side of the defendants, the third defendant was examined as D.W.1, who had claimed that the screen play and story were not copied and they were her own version. After the examination of D.W.1, the plaintiff has come up with the above application for viewing and scrutinising the subject matter of the suit films “MADUREY” and “EVADAITHE NEKENDI”.

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The third respondent has filed counter affidavit in this application contending that the very application is an abuse of process of law of the same is not maintainable as the evidence of the plaintiff's side is over and the evidence of the third defendant as D.W.1 is in the

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midst of cross-examination. It is further stated that though the applicant has filed an application for an order to view and scrutinise the subject matter of the suit films for arriving at a conclusion, till date, he has not produced the said movie as an exhibit or material object either at the time of filing of the suit or during the evidence.

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Heard Mr. R. Shanmugam, learned counsel appearing for the applicant / plaintiff and Mr. R. Parthasarathy, learned counsel for the respondents / defendants 1 to 3 and perused the records.

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With regard to the interpretation under Order 18 Rule 17 CPC, learned counsel for the respondents relied on the decision of the Hon'ble Supreme Court in Bagai Construction vs. Gupta Building Material Store [(2013) 14 SCC 1] and referred to paragraphs 9 to 11 of the judgment, which read as follows:-

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Para 9 : “In Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar

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Gogate , this Court had an occasion to consider similar claim, particularly, application filed under Order XVIII Rule 17 and held as under: (SCC pp. 414-15, paras 25, 28-29 & 31)

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“25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable

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the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

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28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

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29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.

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31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to

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allow such an application. In the present appeal, no such case has been made out.”

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Para 10 : If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order XVIII Rule 17, the applications filed by the plaintiff have to be rejected. However, learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy vs. N. Palanisamy , submitted that with the aid of Section 151 CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW-1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same.

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Para 11 : In Velusamy (supra) even after considering the principles laid down in Vadiraj Naggappa Vernekar (supra) and taking note of Section 151 CPC, this Court concluded that: (K.K. Velusamy case, SCC p. 286, para 22)

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“22. ... in the interests of justice and to prevent abuse of the process of the Court, the trial Court is free to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent....”

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Learned counsel for the respondents also seeks in aid of

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the decision of the Hon'ble Apex Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust [(2012) 8 SCC 706 and more particularly, placed reliance on paragraph 17 of the judgment, which is extracted below:-

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“In the case on hand, the plaintiff-respondent to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second defendant has the necessary authority under the power of attorney. Order VII Rule 14 mandates that the plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order VII Rule 14(1). As rightly pointed out by the learned senior counsel for the appellant, if he is not in possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order VII Rule 14(2) instead of explaining in whose custody the power of attorney is, the plaintiff has simply stated ‘Nil’. It clearly shows noncompliance of Order VII Rule 14(2).”

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Before going into the merits of the application as well as the contentions raised by the learned counsel for the parties, it would be worthwhile to refer to the provisions of the Acts dealing with the subject matter.

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Section 2(f) of the Copy Right Act, 1957, extracted below, defines what is cinematograph film:-

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“Cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “Cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films”

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Insofar as the copy right is concerned, Section 14(d) of the Copy Right Act 1957 defines what is a copy right of a cinematograph film and the same is re-produced as under:-

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14. Meaning of copyright .-- for the purposes of this Act, “copyright” means the right exclusive subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

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(d) in the case of a cinematograph film, --

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(i) to make a copy of the film, including a photograph of any image forming part thereof;

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(ii) to sell or give on hire, or offer for sale of hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

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(iii) to communicate the film to the public;”

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From the above definition, it is clear that Copyright Acts

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are not about the origin of ideas but with the expression of the same. Therefore, the question whether there has been an infringement of copyright depends on the point that whether a colourable imitation has been made. The burden is on the plaintiff to establish the infringement of copyright that he is the originator of the concept, screenplay, etc. On the other hand, in the instant case, no material has been placed before this Court even to hold that the plaintiff has made out a prima facie case to prove that his work has been imitated.

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The proposition laid down in the decisions cited supra, is that Order 18 Rule 17 cannot be used for filling up the omissions in the evidence adduced already. The power under Order 18 Rule 17 CPC

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is given to the Court to invoke it suo motu or at the instance of the parties. However, the same should be used sparingly in appropriate case and it cannot be exercised in a routine manner especially after the evidence of the plaintiff is closed at a belated stage of the suit.

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Besides, the plaintiff has not specifically asked for any direction as to who should view or scrutinize the movie to reach the constructive conclusion about the illegal copying. When the subject matter of the suit film is not before this Court marked as any document or in the absence of any specific direction as to who is the competent authority to view, scrutinize and report the alleged copying, this Court cannot give any direction to anybody. If the defendants / respondents had infringed any copy right material of the suit film, it is for the plaintiff to establish the same. More particularly, when the plaintiff is challenging the infringement of a copy right of a cinematograph film, he ought to have produced the copy of the cinematograph film, which is alleged to have been infringed. Having not produced the same, the prayer sought for by the plaintiff in this application cannot be granted. As stated earlier, in the absence of the document to be viewed or scrutinized, no direction can be given to anybody by this Court after this length of time.

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In view of the above discussion and the provisions of the Copy Right Act, I see no merits in this application. Accordingly, this application is dismissed being devoid of merits.

10 – 12 – 2014

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PUSHPA SATHYANARAYANA, J.

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gri

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Appln. No. 5906 of 2014

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