A. D. DESAI, J. ( 1 ) THE plaintiffs appellants filed Civil Suit No. 2736 of 1975 in the City Civil Court. Ahmedabad on September 10 1975 claiming a permanent injunction against the defendants respondents restraining them from exhibiting the cinematographic picture named Jai Santoshi Maa. Defendant-respondent No. 1 is a name and style of business carried on by defendant-respondent No. 2 who had produced the said movie. Defendant respondent No. 3 is the Director of the movie and defendant-respondent No. 4 had written the theme thereof Defendant-respondent No. 5 is the distributor and defendants-respondents Nos. 6 to 14 are the theatres wherein the aforesaid movie was exhibited in the City of Ahmedabad After filing of the suit the plaintiffs took out a notice of motion for a temporary injunction restraining the exhibition of the movie by the defendants on notice being given to the defendants they appeared and showed cause. After hearing both the parties the learned City Civil Judge discharged the rule on the ground that the subject matter of the suit did not involve any civil right of the plaintiffs and consequently did not fall under sec. 9 of the Civil Procedure Code. In order to complete the judgment the learned trial Judge considered the motion on merits and came to the conclusion that the title of the movie and the advertising literature thereof clearly indicated that the movie was religious and mythological and it was natural that any person interested in mythology and when attracted and saw the picture it would hurt his religious belief. It is this order refusing the temporary injunction which is challenged in this appeal. ( 2 ) THE plaintiffs claimed to be firm believers in Hindu religion and in Gods and Goddesses of the said religion even though they do not belong to any specific sect or Sampradaya. The plaintiffs hold in high esteem all Gods mentioned in the Puranas and are firm believers of Brahma Vishnu and Mahesh and Goddesses Laksmi Parvati and Saraswati etc. and visit their temples according to convenience. The background of the suit film is since last 20 years a practice amongst many Hindu women is prevalent of observing Vrat in the name of Santoshi Maa and the said Vrat has acquired considerable importance amongst Hindu women. and visit their temples according to convenience. The background of the suit film is since last 20 years a practice amongst many Hindu women is prevalent of observing Vrat in the name of Santoshi Maa and the said Vrat has acquired considerable importance amongst Hindu women. The person observing the said Vrat has to partake one meal on Friday listen to the story of Santoshi Mata and distribute gram and gur as prasad and does not eat any sour items on that day. Defendants Nos. 1 to 4 have produced the said film taking the basis of the story of Santoshi Mata which is familiar to those observing the Vrat. The said story in short is that an old lady has 7 sons out of which she has more affection for 6 sons and the seventh was not a favourite son. The old lady used to serve food to the 7th son which remained after serving dinner to the 6 sons. The seventh son was a simpleton and was not aware of the discrimination but his wife was intelligent and sharp. She informed her husband about the discrimination and after having been convinced about such discrimination the seventh son went away to a distant city and obtained service in a shop. In course of time because of his honesty and efficiency he became a big business man. His wife was very miserable at home and she was sent to the forest to collect wood for fuel and was required to do considerable work. She was very badly treated and was given only a piece of bread and water in a broken dish. She saw some ladies observing the Vrat of Santoshi Mata and after asking them about the same she went to the temple of Santoshi Mata after taking gram and gur and commenced observing the Vrat After the lapse of one Friday she received a letter from her husband on the second Friday and on the third Friday she received money Thereafter her husband got a message in his dream through Santoshi Mata to return to his wife and accordingly he left for his house. His wife was in the temple and observing a cloud of dust she asked the reason thereof to Mataji who informed her that her husband was returning. His wife was in the temple and observing a cloud of dust she asked the reason thereof to Mataji who informed her that her husband was returning. Her husband had gone home and when she entered the house with log of wood on her head and asked for her piece of bread and water she was given the same in a broken dish and seeing that the husband took up a separate residence and stayed with his wife. Thereafter she wanted to celebrate the Vrat of Santoshi Mata and she had invited her elder sisters-in-law and their children. The elder sisters-in-law had coaxed the children to demand sour items for their food and the children asked for sour items which were not given. Therefore they asked for money and after taking the money the said children had purchased and eaten Amli. Santoshi Mata was infuriated because of non-observance of the Vrat and therefore the Government officers had arrived and arrested the husband. Therefore the wife again went to the temple of Santoshi Mata and prayed for forgiveness and while returning was greeted by her husband and therefore on the next Friday again the Vrat was celebrated at which Mataji assumed a devilish form and inspite of that the wife recognised her and was greatly elated at her arrival and threw a child to the Mataji who received the same in her arms and thereafter blessing all Mataji disappeared. According to the plaintiffs the Vrat of Santoshi Mata is a Vrat of folklore because there is no reference thereto in the scriptures. There are also no ancient temples of Santoshi Mata. Notwithstanding the fact that the story as above defendants Nos. 1 to 4 have produced the film which contains the following story. Ganpathys sister Mansa is tying Raksha on the hand of Ganpathy when his 2 sons also are present and they insisted that their aunt Mansa should also tie Raksha on their hands. Thereupon the aunt explained to them that Raksha could be tied by a sister and because they did not have sisters Raksha could not be tied on their hands. Thereupon the sons were disappointed and therefore Narada requested Ganpathy to produce a daughter and Ganpathy immediately produced a daughter who tied Raksha to the sons of Ganpathy. Narada declared that the daughter of Ganpathy would be known in the world as Santoshi Mata. Thereupon the sons were disappointed and therefore Narada requested Ganpathy to produce a daughter and Ganpathy immediately produced a daughter who tied Raksha to the sons of Ganpathy. Narada declared that the daughter of Ganpathy would be known in the world as Santoshi Mata. There is no such incident in the Puranas and Ganpathy did not have a sister by the name Mansha. Ganpathys sisters name was Usha and there is no reference in the Puranas that Ganpathy had a daughter. After the introduction of Santoshi Mata in the picture there is a scene of temple of Santoshi Mata and the song arti of Santoshi Mata is being sung. Satyavati the heroine of the said film is returning home with her friends after performing the Aarti and on the way meets Birju the hero of the film. They fall in love at first sight and thereafter both of them go to their respective houses. The father of Satyavati is also a devotee of Santoshi Mata. Birju has 6 brothers and an old mother. The brothers are cultivating lands but Birju is an artist and is an expert in playing the flute and singing songs. He is invited to recite Bhajan at the temple of Santoshi Mata in the village of the heroine Satyavati and therefore Birju goes there and recites Bhajan at which time Satyavati and her friends are also present. While returning from the temple she is accosted by a villain Bankay who with his associates tried to molest Satyavati. At that time Birju with his friends arrive on the scene and Birju and his friends give a beating to the villain and his associates. Birju is slightly injured and Satyavati takes him to her house and informs her father about the incident. Thereafter Birju goes to his house. The brothers of Birju thereafter arrange the marriage of Satyavati with Birju. The marriage is performed and Birju and Satyavati return home when her elder sisters-in-law deliberately cause in- auspicious incidents to happen Thereafter both of them go on a pilgrimage of various places of Santoshi Mala. Thereafter there are scenes of Brahmani Laxmiji and Parvatiji. Narad goes before them and informs that he is a devotee of the three Goddesses but the people on earth are devotees of Santoshi Mata. Narada is praising Santoshi Mata and the devotion of Satyavati for Santoshi Mata. Thereafter there are scenes of Brahmani Laxmiji and Parvatiji. Narad goes before them and informs that he is a devotee of the three Goddesses but the people on earth are devotees of Santoshi Mata. Narada is praising Santoshi Mata and the devotion of Satyavati for Santoshi Mata. He further states that there is no goddess like Santoshi Mata and therefore the three Goddesses are jealous and decided to teach a lesson to Satyavati. In the meantime Brahma Vishnu and Mahesh in the guise of mendicants go to the house of Satyavati for Bhiksha and when they return Sarasvati Laxmi and Parvati inquire of them and they also praise Satyavati and state that Satyavati is a staunch devotee of Santoshi Mata and thereupon the Goddesses decide that they will not allow the influence of Santoshi Mata to increase and the Goddesses inform Satyavati to give up the devotion of Santoshi Mata but Satyavati humbly refuses to do so and thereupon the Goddesses challenge Satyavati to be prepared for the consequences. The wives of the brothers of Birju dislike Birju and therefore whatever food is left over in the plates of the others is being collected and served in a plate to Birju. Satyavati sees this and informs Birju about it and Birju also sees that Thereupon there are disputes in the house and Birju declares that he will return after earning money and leaves the house. Narada informs the three Goddesses that they must now have been pleased when the three Goddesses stated that so far only Birju has left his house we will see what happens to him After leaving the house Birju is crossing a river in a boat and the Goddesses have the boat sunk and Birju is drowned in the river Satyavati prays to Santoshi Mata for the welfare of her husband and thereupon Santoshi Mata lifts Birju out of the river and places him on the bank and brings him to life. Birju there. after goes to the temple of Santoshi Mata for Darshan where a rich jeweller becomes sick and unconscious. His jewellery is scattered over. Birju sees that and nurses the jeweller anal brings him to his senses and returns the jewellery to him and the jeweller gives employment to Birju where Birju achieves considerable progress with hard work and becomes a family member of the jeweller. His jewellery is scattered over. Birju sees that and nurses the jeweller anal brings him to his senses and returns the jewellery to him and the jeweller gives employment to Birju where Birju achieves considerable progress with hard work and becomes a family member of the jeweller. The daughter of the jeweller is in love with Birju. But Birju remember Satyavati and when the daughter of jewller shows love to Birju then Birju gets tip with the memory of Satyavati. At that time the three Goddesses contrive that Birju forgets Satyavati and Birju accepts the daughter of the jeweller and forgets his house. Satyavati who is being harassed from all sides now performs the Vrat of 16 Friday. Narad informs the three Goddesses that on the completion of the Vrat of Satyavati the Maya of the three Goddesses will be completed and there will be re-union of the husband and wife. Thereupon the Goddesses declare that they will not allow the Vrat to be completed. Santoshi Mata asks Birju to go to his home and when the Vrat is about to be completed Birju returns home with jewellery ornaments rings etc. and everybody welcomes him but seeing the condition of Satyavati he is very angry and stays separately. There is celebration of Vrat and Satyavati invites the brothers of Birju and at the time of worship and Bhajan the wives of the brothers of Birju pour sour things in the food and thereupon the children die and Santoshi Mata is angry and there is destruction. Satyavati again prays to Santoshi Mata and Santoshi Mata is pleased and revives the children. The case of the plaintiffs for injunction is based on the ground that the movie is presented as a religious and mythological one even through it is not so in fact. Persons having interest in religion and mythology will be attracted by the picture and when the same is seen by them it will hurt their feelings as Goddesses Saraswati Laxmi and Parvati are depicted jealous and are rediculed. The defendants have definitely distorted and abused Hindu mythology and they have depicted the mythology by introducing invented story. Persons having interest in religion and mythology will be attracted by the picture and when the same is seen by them it will hurt their feelings as Goddesses Saraswati Laxmi and Parvati are depicted jealous and are rediculed. The defendants have definitely distorted and abused Hindu mythology and they have depicted the mythology by introducing invented story. ( 3 ) THE defendants have contested the application for motion to grant of temporary injunction contending that the suit filed is not of civil nature and no injunction could be issued either under the provisions of Order 39 Civil Procedure Code (hereinafter referred to as the Code) or the provisions of the Specific Relief Act. The suit had been filed by the plaintiffs with mala fide intention and to harass the defendants adding that defendant No. 1 had information that the plaintiffs have previously filed a suit against the film named Har Har Mahadev. In para 7 of the affidavit respondent No. 1 it is stated that the film in question is religious mythological one but denied that it hurt the religious feelings of Hindus. It is admitted by the defendants that some mythological books do not refer to the incidents of Santoshi Maa. The said film discloses in the very beginning that the entire film is imaginary and it would be fallacy to appreciate the said film with reference to mythological books. The defendants state that it is usual and normal to show in religious and mythological films certain incidents which go to show that Gods or Goddesses are trying to test the sincerity of the devotee and to that end the devotee is made to suffer misery and humiliation. In the film the three Goddesses are depicted to be saying that they tried to test the sincerity of Satyavati in her devotion to Santoshi Mata and this itself indicates that there was no malice as alleged by the plaintiffs They deny that the movie hurts religious feelings of Hindus. The film had been exhibited in large number of cities and towns. There were about 100 prints being exhibited throughout the country. The said film was being exhibited since last 4 months that is since June 1975 and no person had Complained about his religious feelings having been hurt by the exhibition of the film. The film had been exhibited in large number of cities and towns. There were about 100 prints being exhibited throughout the country. The said film was being exhibited since last 4 months that is since June 1975 and no person had Complained about his religious feelings having been hurt by the exhibition of the film. The film had been seen by about 1 45 0 0 people throughout India and none of them have complained about their religious feelings being hurt The film is being exhibited after the Board of Censor had given certificate under the Cinematograph Act 1952 ( 4 ) THE question is whether the present claim of the plaintiffs is of civil nature. Sec. 9 of the Code provides that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which of a cognizance is either expressly or impliedly barred. The explanation to the section provides that a suit in which right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Sec. 9 of the Code thus prescribes the nature of the suit which a Court has a jurisdiction to entertain. It can entertain other suits of civil nature excepting the suits of which cognizance is barred. The Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in Civil Court for they do not deal with legal rights of the parties. But the explanation to the section accepting the said undisputed position says that a suit in which right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decisions of the questions as to religious rites or ceremonies. This implies two things namely (1) a suit for an office is a suit of a civil nature; and (2) it does not cease to be one if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. This implies two things namely (1) a suit for an office is a suit of a civil nature; and (2) it does not cease to be one if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. It implies further that question as to religious riles or ceremonies cannot independently of such a right form the subject matter of a civil suit vide SRI SINGHA RAMANUJA JEER ALIAS SRI VANA NAMALAI RAMANUJA JEER SWAMIGAL V. SRI RANGA RAMANUJA JEER ALIAS EMBERIMANAR JEER AND OTHERS A. I. R. 1961 S. C. 1720. There is no question in this suit to the property or to an office and explanation to sec 9 has no application. It is not suggested in this case that the cognizance of the suit is either expressly or impliedly barred. The case of the plaintiffs is that the present case is of a civil nature which the defendants dispute. In order to support the case that the present suit is of a civil nature Mr. Modi for the appellants put forward two broad contentions. The first contention was that Article 25 of the Constitution guarantees freedom of conscience and free profession practice and propagation of religion. Ordinarily civil right is raised to a status of a fundamental right and this fundamental right can be enforced by a civil suit even though it cannot be enforced under Article 226 of the Constitution. The second contention is that religious feelings of an individual is a part of civil right and any hurt to it is an actionable one. This is so for 3 reasons: (1) that an obligation is cast upon the defendants as a result of the provisions of secs. The second contention is that religious feelings of an individual is a part of civil right and any hurt to it is an actionable one. This is so for 3 reasons: (1) that an obligation is cast upon the defendants as a result of the provisions of secs. 295 and 295-A of the Indian Penal Code not to destroy or defile any object held sacred by any class of persons with the intention of insulting the religion of such class of persons and also not to outrage religious feeling of any class of people by words either spoken or written or by sign or by visible representations or not to otherwise insult or attempt to insult the religion or the religious belief of that class and there is in the present case a breach of this statutory obligation (9) the injury complained of by the appellants is not as a result of purely private action inasmuch as the state has granted its sanction by issuing a certificate through the Central Board of Film Censor for public exhibition of the film. Issuance of such certificate clothes the production and exhibition of the movie with the authority or sanction of the State and the appellants are therefore entitled to injunction for protection of their rights under Articles 25 and 26 of the Constitution of India from infringement by any act which bears the impression of the State and (3) to hurt religious feeling of a person is a tort. The question is how far these contentions raised by Mr. Modi with ability and pursuance can be accepted. Now Article 25 (1) of the Constitution provides that subject to public order morality and health and to the other provisions of Part III all persons are equally entitled to freedom of conscience and the right freely to profess practice and propagate religion. Under this Article right to profess is recognised as a fundamental right subject to certain limitations. This Article recognises the principle that it is policy of the State to protect all religions but to interfere with none. It enunciates tradition of religious neutrality of the State It enjoins to certain extent that the State shall not interfere with the right to profess practice and propagate religion. This Article recognises the principle that it is policy of the State to protect all religions but to interfere with none. It enunciates tradition of religious neutrality of the State It enjoins to certain extent that the State shall not interfere with the right to profess practice and propagate religion. The provisions of Article 25 of the Constitution are to be read with Article 13 of the Constitution an I it is abundantly clear that what is provided therein is an express prohibition against the legislative interference with the rights mentioned in Article 25 of the Constitution. In this connection the provisions of Articles 17 and 23 of the Constitution may be noted. Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Article 23 (1) provides that traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. The provisions of these two Articles prohibit an individual from doing any act contrary thereto. That is not the case with Article 25. The provisions of Article 25 are similar to Articles 19 and 31 of the Constitution. The language of Article 25 and its setting in part III of the Constitution manifestly indicate that the violation of rights under Article 25 by an individual is not within the preview of the Article see the decision in P. D. SHAMADASANI V. THE CENTRAL BANK OF INDIA LTD. A. I. R. 1952 S. C. 59 where the Supreme Court considered the provisions of Articles 19 and 31 of the Constitution which Articles are worded similar to Article 25 and the Court held that Articles 19 and 31 were not intended to protect violation of the rights by an individual. ( 5 ) THE next contention may now be considered and it is that certificate for exhibition of the movie granted by the Central Government clothes the production and exhibition of the movie with the authority and sanction of the State and law and therefore the appellants are entitled to protection of rights under Articles 25 and 26 of the Constitution from infringement by any act which bears the impression of the State. In support of this argument much reliance was placed on the judgment of Mathew J. in SUKHDER SING AND OTHERS V. BHAGATRAM SARDAR SING RAGHUVANSHI AND ANOTHER A. I. R. 1975 S. C. 1331 wherein the learned Judge was considering the question whether on and Natural Gas Commission Life Insurance Corporation or Industrial Finance Corporation were other authorities within Article 12 of the Constitution. The learned Judge held that the expression other authorities would include all constitutional or statutory authorities on whom powers are conferred by law. The learned Judge approached the question by observing:does any amount of State help however inconsequential make an act something more than an individual Act ? Suppose a privately owned and managed operation receives direct financial aid from the State is an act of such an agency an act of State ? It would be difficult to give a categorical answer to this question. Any operation or purpose of value to the public may be encouraged by appropriation of public money and the resulting publicly supported operation can be characterized as a State operation. But such a rule would seem to go to the extreme. There seems to be no formula which would provide the correct division of cases of this type into neat categories of State action and private action. Some clue however to the con siderations which night impel the court in one direction or the other may be obtained from an examination of the cases in this area. The decisions of the State courts in U. S. A seem to establish that a private agency if supported by public money for its operation would be State. But in all these cases it has been found that there was an element of control exercised by the State. Therefore it may be stated generally that State financial aid alone does not render the institution receiving such aid a State agency. Financial aid plus some additional factor might lead to a different conclusion. A mere finding of State control also is not determinative of the question since a State has considerable measure of control under its police power over all types of business operations. Financial aid plus some additional factor might lead to a different conclusion. A mere finding of State control also is not determinative of the question since a State has considerable measure of control under its police power over all types of business operations. It is not possible to assume that the panoply of law and authority of a State under which people carry on ordinary business or their private affairs or own property each enjoying equality in terms of legal eapacity would be extraordinary assistance. A finding of State financial support Plus an unusual decree of control over the management and policies might lead one to characterize an operation as State action. Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental function as to be classified as a governmental agency then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description then mere addition of State money would not influence the conclusionthe State may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain it may grant tax exemptions or it may give it a monopolistic status for certain purposes. All these are relevant in making an assessment whether the operation is private or savours of State action. IT is this reasoning on which the arguments of Mr. Modi are founded Upon. Now the question thus involved is not a pure question of law but requires investigation of facts. It was sought to be raised for the first time in this Court by amending the memo of appeal. Under the provisions of the Cinematrograph Act 1952 film Censor Board is established. It also provides for advisory penals at regional centres. The Board after examining the film permits it for exhibition. The principles for guidance are to be G. R. 55 found in sec. Under the provisions of the Cinematrograph Act 1952 film Censor Board is established. It also provides for advisory penals at regional centres. The Board after examining the film permits it for exhibition. The principles for guidance are to be G. R. 55 found in sec. 5b of the Cinematograph Act which provides so far relevant that a film shall not be certified for public exhibition if in the opinion of the authority competent to grant the certificate the film or any part of it is against the interests or the security of the State friendly relations with foreign States public order decency or morality or involves defamation or contempt of court or is likely to incite the commission of any offence. There are certain general principles laid by the Central Government in this connection. It is in pursuance of these provisions that certificate of exhibition was granted to the defendants for exhibition of the movie in question. To put in short the provisions of the Act relating to sanctioning of exhibition of a movie are regulatory and amounts to licensing exhibition of film. There is no unusual degree of control over the management producing the movie. Merely licensing control envisaged by the provisions of the Cinematography Act cannot be a determinative question for a state has considerable measure of control under its police powers over all types of business operations. It is therefore not possible to accept that this regulatory power of the State over the ordinary business of the defendants would result in extraordinary assistance of the State or that the production and exhibition of the movie is with the authority of the State or is the action of the State which would attract the provisions of Articles 25 and 26 of the Constitution. The argument is misconceived and there is no merits in it. ( 6 ) THE other contentions may now be noted and it is that a legal duty or an obligation is cast upon persons and especially the defendants as a result of the provisions of secs. 295 and 295-A of the Indian Penal Code Secs. The argument is misconceived and there is no merits in it. ( 6 ) THE other contentions may now be noted and it is that a legal duty or an obligation is cast upon persons and especially the defendants as a result of the provisions of secs. 295 and 295-A of the Indian Penal Code Secs. 295 and 295-A of the Indian Penal Code are as under: 295 Whoever destroys damages or defiles any place of worship or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. 295 Whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizen of India by words either spoken or written or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. Now there are certain wrongs which are exclusively criminal. The legislature intends to deal with such wrongs by declaring them as offences and providing punishment. All wrongs are not actionable torts or to put in other words they are not actionable in Civil Court. This point is raised for the first time in this Court and determination thereof depends upon the allegations made in the plaint. Now the relevant allegations in the plaints are that the defendants have produced the movie taking advantage of blind religious faith of Hindus. The character of Gods and Goddesses are depicted in arbitrary manner and without any authority of scriptures and in the manner that is likely to hurt the religious feelings of the Hindus. The movie is produced for the purpose of earning money that is for commercial purpose. There are no allegations of mens rea contemplated by the provisions of secs. 295 and 295a of the Indian Penal Code with the consequence that no breach of legal duty or obligation have been alleged much less established. The movie is produced for the purpose of earning money that is for commercial purpose. There are no allegations of mens rea contemplated by the provisions of secs. 295 and 295a of the Indian Penal Code with the consequence that no breach of legal duty or obligation have been alleged much less established. It is the duty of the plaintiffs to allege that there is a breach of duty or breach of statutory obligation before they can claim a right to sue. There is no complaint of infraction of the provisions of secs. 295 and 295a of the Indian Penal Code and therefore the aforesaid arguments have no merits. The decisions in MONK. V. WARBEY AND OTHERS 1935 (K. B.) 75 AND KRISHNA KALI MALLIK V. BABULAL SHAW and OTHERS A. I. R. 1965 CAL. 148 are of no assistance to the plaintiffs. It is not necessary therefore to consider the argument of the respondents that the provisions of secs. 295 and 295-A of the Indian Penal Code only provide for criminal liability and no liability in tort can arise from the breach thereof. ( 7 ) THIS leads to the last contention of Mr. Modi that the movie depicts Gods and Goddesses as jealous they are ridiculed and there is a misrepresentation because it is stated that the movie is based upon mythology and as a result religious feelings of the appellants and other Hindus are hurt. The defendants have committed a tort and actionable one for which a civil suit can lie. No doubt contended Mr. Modi the respondents have a right to produce a movie and to exhibit the same but this right is to be enjoyed by them in such a manner as not to hurt legal rights of other persons. The scenes in the present movie have hurt religious feelings of the appellants and other Hindus and have caused them mental pain and strain. The religion embraces not merely matters of doctrine and beliefs pertaining to religion but practice of it. Mythology is a part of religion. The religious susceptibility of persons of different religious persuasion or creed must be respected and there must be due regard to religious feelings irrespective of whether one shares the belief or not. Hence in the present case there is infringement of legal rights of the appellants and other Hindus. Mythology is a part of religion. The religious susceptibility of persons of different religious persuasion or creed must be respected and there must be due regard to religious feelings irrespective of whether one shares the belief or not. Hence in the present case there is infringement of legal rights of the appellants and other Hindus. There is damage to their feelings because the religious feelings are hurt which cannot be compensated in money. In this case there is an action. able tort. The scenes depicting the Gods and Goddesses as jealous and wherein they are rediculed are offensive and indecent and religious feelings of the appellants and other Hindus have been hurt. This act of the defendants amount to nuisance which is an actionable wrong. The misrepresentation made by the defendants that the story of the movie is based upon mythology though in fact it is not so is also a tort. ( 8 ) THE aforesaid arguments of Mr. Modi require careful consideration. Now in para 6 of the affidavit filed by defendant No. 1 it is stated that the film is religious and mythological one. In para 9 of the affidavit it is stated that mythological books do not refer to the Santoshi Maa. At the commencement of the movie it is stated that the entire film is imaginary and the narration of Santoshi Maa is derived from some religious books and folk tales. It is not stated in the film that it is a mythological picture. It is only in the affidavit that it is stated that the film is religious and mythological. Reference to mythology in paragraph 6 is not totally untrue because Gods and Goddesses namely Ganpathy Narad Saraswati Laxmi and Parvati are referred to in mythology and are also shown in the movie. It is not the statement of the defendants that Goddess Santoshi Maa is a mythological figure. It is clearly mentioned in the introduction that Santoshi Maa narration has been derived from religious books and folk tales. In Ex. 30 the affidavit of defendant No. 1 it is stated that the story is based on incidents narrated in Kalyan Magazine Shukravar Vrat Katha and Shiv Mahapuran and other relevant literature on the subject. The reference to religious books does not mean reference to books of mythology or Puranas. In Ex. 30 the affidavit of defendant No. 1 it is stated that the story is based on incidents narrated in Kalyan Magazine Shukravar Vrat Katha and Shiv Mahapuran and other relevant literature on the subject. The reference to religious books does not mean reference to books of mythology or Puranas. There is no dispute that there are certain religious books which give the story of Santoshi Maa and these are considered as religious books. The warning given before the actual movie commences has to be kept in mind and the movie is to be viewed in that light and not in ignorance of that. In view of the aforesaid statement made at the commencement of the film it cannot prima facie be accepted that the defendants have made any misrepresentation as alleged by the plaintiffs viz. that the movie is passed off as a mythological film. And after all what is mythology ? The word mythology comes from the word myth and dictionary meaning of the word is a fable a legend an invented story a fabulous narrative founded upon a remote event fictitious primitive tale. It is stated in the Websters New Twentieth Century Dictionary Unbridged Second Edition page 1191 that parts of mythology are religious parts of mythology are historical parts of mythology are poeticle but mythology as a whole is neither religion nor history nor philosophy not poetry. It comprehends all these together under that peculiar form of expression which is natural and intelligible at a certain stage or at certain recurring stages in the development of thought and speech but which after becoming traditional becomes frequently unnatural and unintelligible. Mythology is after all traditions inter-woven with the history origin deities etc. of a specific people. Taking this usual and dictionary meaning it cannot be said that there is misrepresentation about the film when the same is referred as mythological because in the story of the film are interwoven the religious parts of mythology with historical parts or tradition is interwoven with history with a warning in the start that the entire film is imaginary. Taking this usual and dictionary meaning it cannot be said that there is misrepresentation about the film when the same is referred as mythological because in the story of the film are interwoven the religious parts of mythology with historical parts or tradition is interwoven with history with a warning in the start that the entire film is imaginary. I therefore do not agree with the finding of the trial Court that the movie is passed of as mythological ( 9 ) NOW nuisance is a word which is not capable of exact definition but may be defined as anything which if injurious to health or offending to the senses and which causes injury or damage or annoyance or discomfort to others. In order that nuisance is an actionable tort it is essential that there should exist (1) wrongful act; (2) damage or loss or inconvenience or annoyance caused to another. The later alone can give no right to a legal action. Inconvenience or annoyance or discomfort to be considered must be more than mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material. A person must submit to discomfort or annoyance in the interest of the public generally or caused by lawful action of another. The question what constitutes nuisance is one which the Court has to determine. The Court has first to ascertain what in the circumstances is the legal duty of the individual alleged to be in default. The right to an injunction depends on the legal right and this must be determined before any relief can be granted by the Court. A strong case need be made out by the plaintiff. Having noticed the principles of law the objections of the plaintiffs to the exhibition of the defendants movie may now be considered. The objections of the plaintiffs that the film is based on the religion and mythology is considered hereinbefore and the same may not be repeated The second and the main objection of the plaintiffs is that in the film the three Goddesses Saraswati Laxmi and Parvati have been depicted as jealous and arrogant. The objections of the plaintiffs that the film is based on the religion and mythology is considered hereinbefore and the same may not be repeated The second and the main objection of the plaintiffs is that in the film the three Goddesses Saraswati Laxmi and Parvati have been depicted as jealous and arrogant. The learned trial Judge has observed in para 41 of his judgment; the role assigned to the three ancient Goddesses is that of a villainous characters and nothing more or less than that. THE case of the plaintiffs therefore is that the film would hurt the feelings of the followers of Hindu religion. The question then is can it be said that any right of the plaintiffs is infringed so as to give right to file a civil suit ? The answer to this question is in my opinion in the negative. Now the defendants have obtained a certificate of public exhibition under the Cinematograph Act and the certificate granted thereunder in the opinion of the Board of Film Censors is that the film or any part of it is not amongst other things against public order decency or morality and is not likely to incite the commission of any offence. The Board of Film Censors is the body who usually grants certificate it is a body farely well and experienced in the matter. After carefully examining the film and keeping in mind the principles of guidance the Board of Film Censors has certified the film. As the certificate of exhibition is granted to the defendants they have a right to exhibit the film. The certificate is not challenged in this case. Exhibition of the film is a legal right of the defendants. The motion of temporary injunction is one which asks the Court to interfere with the legal right of exhibition of the movie by the defendants and this interference is sought on the ground that the religious feelings of the plaintiffs and other Hindus will be hurt. The plaintiffs must establish existence of such right and such curtailment of the right which will be actionable in Court of law. The plaintiffs and other Hindus may have reverence for the said Goddesses but what legal right of theirs is curtailed by the defendants by exhibiting the film in exercise of the prima facie legal right. The plaintiffs must establish existence of such right and such curtailment of the right which will be actionable in Court of law. The plaintiffs and other Hindus may have reverence for the said Goddesses but what legal right of theirs is curtailed by the defendants by exhibiting the film in exercise of the prima facie legal right. The defendants exhibit the film which is certified and they do so in exercise of their legal right. No legal right of the plaintiffs is infringed. Mere fact that the defendants movie shocked the religious sentiment of the plaintiffs is not itself a matter which gives rise to a cause of action. No person is entitled to whatever religion he may belong to enforce his religious views upon another or to restrain that other from doing any lawful act because it would not fit in with the tenets of his particular religion. It is not the case that the action of the defendants is mala fide. Every one is entitled to his own religious beliefs but he cannot force them upon another so as to restrain the other from dealing with right of property in a manner incompatible to those beliefs. The defendants have clarified at the very commencement of the film that the entire film is imaginary. The folk story of Santoshi Maa is in vogue since last many years and there are religious books which refer to it. It may be that the feelings of the plaintiffs and persons like them would be aroused on seeing the film and annoyance may be the result but the annoyance is not such that a Court of law can take cognizance or recognize. It is true that tort is not defined. Torts are infinitely various and not limited and confined. The novelty of claim may arise and Court may recognize a novel claim. India is a country where various religions are followed and this has to be kept in mind while evolving a new tort. The hurt to religious feeling is not recognized by the Civil Court. In BIHARI LAL AND OTHERS V. GHISA LAL AND OTHERS I. L. R. 24 ALL. 499 the facts were that plaintiffs sued for injunction restraining the defendants from obstructing them in cutting certain branches of a pipal tree overhanging their property. The hurt to religious feeling is not recognized by the Civil Court. In BIHARI LAL AND OTHERS V. GHISA LAL AND OTHERS I. L. R. 24 ALL. 499 the facts were that plaintiffs sued for injunction restraining the defendants from obstructing them in cutting certain branches of a pipal tree overhanging their property. The pipal tree grew in the enclosure of a temple and the resistance was based on the ground that the tree was an object of veneration to Hindus and that the lopping of its branches would be offensive to the religious feelings of the Hindu community. The Court in this case observed:the question is serious one in this country because on the one hand it is highly undesirable to insult or irritate the religious susceptibilities of the people; and on the other one has to look for the existence of some principle of law by which the general feeling of one part of the population can be allowed to override the ordinary rights of property vested in another person. Mr. Tej Bahadur for the appellants contends that there is no such curtailment of individual right of property known to the law and Mr. Malaviya for the respondents is unable out of the long array of Indian cases to produce a single authority in support of the judgments of the Courts below. The Court further observed: the proposition put before me is that if the general body of a muhalla entertain a feeling of reverence towards any tree. no individual owning a house in that muhalla can seek to lop off any of its branches which may overhang his property even though they may prejudicially affect it. That is a proposition unsupported by authority and inconsistent with common sense. IN VATHIAR RAMANUJA AIYANGAR AND OTHERS V. P. R. AIYANACHARIAR AND OTHERS 17 INDIAN CASES 219 Sundara Aiyar J. referring to an application for temporary injunction to restrain the respondents from carrying the idol of Vedantha Desikar in procession through certain streets observed:it seems to me that where no pecuniary or tangible loss is shown it would not be right to grant stay of execution merely on the ground of annoyance to the feelings of the appellants. In think it would be a sound rule to act upon that mere annoyance to feelings cannot be a ground to grant stay of execution. In think it would be a sound rule to act upon that mere annoyance to feelings cannot be a ground to grant stay of execution. In that case the only injury complained of was that the religious feelings of the community would be outraged and the petition for temporary injunction was dismissed. In KHAJI DODDA KHAIJ SAHIB AND OTHERS V. CHIGAMALLA NANJIAPPA AND OTHER A I R. 1939 MADRAS 642 the facts were that the Hindus of a village objected to erection of a Musjid on the land owned by the Mahomedans on the ground that the feelings of the Hindus would be aroused if the construction of Musjid was allowed. On this basis an injunction restraining the Mahomedans from erecting the Musjid was asked for. The Court held that the land belonged to Mahomedans and the Court could not grant an injunction prohibiting the Mahomedans from erecting the Musjid on the ground of mere annoyance. The Court further observed that it must be shown that some substantial annoyance and one which the Court can recognize had been actually committed before the Court could interfere. The aforesaid decisions are no doubt old but what is decided therein applies with more force in the present times wherein the ideas about religious beliefs are fast changing and are more liberal than the orthodox beliefs which were prevalent in those olden days. It is thus clear that the Courts of law have not recognized hurt to religious feelings as a civil actionable wrong. ( 10 ) MR. Modi relied upon the decision in OWENS V. LIVERPOOL CORPORATION 1939 (1) K B. 394 In that case a funeral procession was going along Scotland Road Liverpool when a tramcar was so negligently driven by a servant of the defendants that it violently collided with the hearse damaged the hearse and caused the coffin to be overturned with the result that the mourners at the funeral who were relatives of the dead man suffered severe mental shock. The aged mother of the deceased an uncle a cousin and the cousins husband sued the defendants for damages for the shock in jury suffered by them. The Court in this case considered the English law prior to the decision and the law was that no action in tort lay for mere mental suffering unaccompanied by physical harm though caused by the wilful act or carelessness of the defendant. The Court in this case considered the English law prior to the decision and the law was that no action in tort lay for mere mental suffering unaccompanied by physical harm though caused by the wilful act or carelessness of the defendant. This principle was departed in this case and damages were awarded to the plaintiffs therein on the ground that the defendants were guilty of negligence and real injury genuinely had been caused for mental shock. Owens case was not accepted by Lord Thankerton Lord Machmillan and Lord Porter in HAY OR BOURHILL V. YOUNG 1943 A. C. 92. In this connection Lord Porter observed; with all respect. I do not myself consider the Court of Appeal justified in thinking that the driver should have anticipated any injury to the plaintiffs as mere spectators or that he was in breach of any duty which he owed to them. Therefore the pertinent question for determination must be is there any legal duty violated by the wrongful act. There must be wrongful act and violation of the legal duty. In the present case these ingredients for the reasons stated aforesaid are not established and therefore the learned trial Judge was right in my opinion that none of the plaintiffs civil right is involved and therefore the suit cannot fall under sec. 9 of the Code. ( 11 ) GRANTING of injunction is governed by the provisions of Order 39 of the Code and sec. 41 of the Specific Relief Act. Sub-rule (1) of Rule (2) of Order 39 of the Code provides that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether compensation is claimed in the suit or not the plaintiff may at any time after the commencement of the suit and either before or after judgment apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of. Sec. 41 (f) of the Specific Relief Act provides that an injunction cannot be granted to prevent on the ground of nuisance an act of which is not reasonably clear that it will be a nuisance. Sec. 41 (f) of the Specific Relief Act provides that an injunction cannot be granted to prevent on the ground of nuisance an act of which is not reasonably clear that it will be a nuisance. In cases of interlocutory injunctions in aid of plaintiffs right all the Court usually has to consider is whether the ease is so clear and free from objection on equitable grounds that it ought to interfere to preserve property without waiting for the right to be finally established. See Halsburys Laws of England Third Edition Vol. 21 page 364. In the present case in any case the plaintiffs cannot get an order of injunction of the Court against the defendants as it is not reasonably clear that the exhibition of the film will be a nuisance. ( 12 ) THE next question is of the balance of injury. In order to grant temporary injunction the principle of balance of injury is a material one. On this point the learned trial Judge has given the judgment in favour of the plaintiffs and it is attacked in this Court. The learned Judge came to the following conclusions:in fact a folk story prevalent for the last about 50 years has been mingled by the author with mythological taint to impress upon the audience to feel that the theme being shown to them is a part and parcel of mythology. The film in question was arranged to he shown to the court having seen the film and the script produced at exh. 35/1 if one were to speak in the legal parlance an attempt is made by the defendants to pass of their theme as a mythological one to the orthodox believers. . . If now such a theme is being exhibited to the public when there is absolutely no mythological basis for it it is very clear and patent that the tenets of the religion are being infringed if for a moment one considers Hindu mythology as part and parcel of Hindu religion. The defendants have by introducing their theme in my opinion deviated totally from true mythology understood as above. The defendants have by introducing their theme in my opinion deviated totally from true mythology understood as above. Again it is welknown that the Gods and Goddesses in Hindu mythology have been imputed by the authors of mythological scriptures with elements like anger envy hatred etc in each mythology the particular God or Goddess to which it relates is shown as superior and the rest as subordinate in rank or even much lower and much weaker. But then all the aforesaid mythology speaking collectively thereof has already become part and parcel of Hindu religion and is quite too ancient. Whatever it is it is that mythology which is being revered by the followers of Hindusim. But this aspect of the mythological part of the religion does not mean that in the present day an author of a literary work or a Director or producer of a film has a right to further distort deform or abuse it And if this view of mine is correct one to that extent the defendants have gone beyond their own scope of authority. . . . . . . . . . . that the defendants movie as a whole as well as in aforesaid parts or aspects discussed by me earlier thereof would hurt the religious feelings of the followers of the Hindu religion and in that connection I would also further state that the defendants had no right to depict the theme as mythological or religious one when in fact no such theme existed in Hindu mythology. . . . the citizen in the present century has no right to impute vices such as envy ego pride prejudice bias or vengeance or the like in the Gods or Goddesses of the Hindu religion and its my thology or otherwise depict those Gods and Goddesses in any unseemly deformed abusive or lowering manner as the defendants have done. Now Santoshi Mata is referred in religious books. There are admittedly folk tales in her connection and as Said hereinbefore there is no case for passing of action as observed by the learned trial Judge in the sense that the film is passed as a mythological one. What is necessary to consider is overall effect of the movie and the film is to be seen and appreciated as a whole. What is necessary to consider is overall effect of the movie and the film is to be seen and appreciated as a whole. The incident should not be broken from their respective context no part of it should be isolated from the other. At the commencement of the picture warning is given that the entire movie is imaginary; at the end of the picture it is clearly shown that the three acknowledged ancient Goddesses said in the picture that they were testing the devotion of Satyavati to Santoshi and it was with this holy and bona fide intention that they inflicted miseries upon her and they were happy that Satyavati successfully came out of them. Together with this we must also take into account what defendant No. 1 has stated in para 14 of his affidavit namely that the film had been exhibited in large number of cities and towns there were about 100 prints being exhibited throughout the country the said film was being exhibited since last 4 months throughout the country and no person had complained about his or her religious feelings having been hurt by the exhibition of the film. In Ex. 31 the affidavit of defendant No. 4 it is stated that so far as per available record the film had been seen by 1 45 0 0 people throughout India. The aforesaid facts stand uncontroverted. The suit is sought to be filed in the representative capacity but no leave of the Court has been obtained by the plaintiffs. Plaintiff No. 1 is Jain by religion and the two plaintiffs alone have come forward with an allegation that the exhibition of the film hurts their religious feelings. The defendants have right to exhibit the film in pursuance of the certificate of exhibition obtained by them. The film is not publicly exhibited that is to say it is not being shown to those who do not want to see it it is being shown on payment; people have to use their volition to see the picture. There is no compulsion to see the film. If the feelings of the plaintiffs are hurt they may not see the movie again. The plaintiffs may propagate against the picture urging the fellow religionist not to see it. There is no compulsion to see the film. If the feelings of the plaintiffs are hurt they may not see the movie again. The plaintiffs may propagate against the picture urging the fellow religionist not to see it. It may be that the religious feelings of the plaintiffs is hurt but considering all the material circumstances of the case as stated hereinabove I am of the view that balance of convenience is in favour of the defendants. The expression of opinion hereinbefore is for the purpose of temporary injunction only. ( 13 ) THE result therefore is that this appeal of the plaintiffs is dismissed and the impugned order of the learned trial Judge is confirmed. There shall be no order as to costs of this appeal. Appeal dismissed. .