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2013 DIGILAW 1022 (PAT)

Dhananjay Kapoor v. Ketan Mehta

2013-08-20

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Heard the parties. 2. This application, under Article 227 of the Constitution of India, has been filed challenging the order dated 30.07.2013 passed in Miscellaneous Appeal No. 10/2013 by learned Additional District Judge- 10, Patna whereby he has set aside an order dated 16.03.2013 passed by learned Sub Judge-X, Patna in Title Suit No. 814/2012 by which ad interim injunction under Order 39 Rule 1 of the Code of Civil Procedure (‘in short the Code’) was granted restraining the respondents/defendants petitioners from screening a film on the life of Late Dashrath Manjhi, who was said to be living legend of the State of Bihar. 3. The petitioners are the plaintiffs before the trial court. Petitioner No.1, as per averments made in the present application, is engaged in profession of films. Petitioner No.2, as stated in this application, is a reputed person, successful and respectable businessman who held Minister’s post in the Bihar Cabinet. He has been credited with production of films and TV serials. The case of the petitioners is that petitioner No.1 learnt about the work and life of Dashrath Manjhi and being impressed about his work, he wanted to make a film in the form of feature film. He approached Dashrath Manjhi and sought his consent for making a feature film on his life. Further case is that the said Dashrath Manjhi directed him to prepare a draft- agreement in this regard. The specific case of the petitioners is that a draft was prepared and given to Dashrath Manjhi for his approval, when he was admitted in Patna Medical College & Hospital, Patna for his treatment. It is asserted that Dashrath Manjhi gave that draft to his close aide, Rajendra Paswan, as Dashrath Manjhi was an illiterate person. It is said that Rajendra Paswan read out the contents of the said agreement and, after having been satisfied about the contents, he fixed his thumb impression on each page of the draft. The agreement is said to have been attested by his aide Rajendra Paswan and another person, Rajesh Nath Ram. Petitioner No.1 is also a signatory to the said document. It is stated in paragraph 10 of this application that on the next date, i.e., 25.07.2007, after entering into agreement, Dashrath Manjhi was referred to AIIMS, New Delhi. The said agreement has been annexed as annexure-4 to this application. Petitioner No.1 is also a signatory to the said document. It is stated in paragraph 10 of this application that on the next date, i.e., 25.07.2007, after entering into agreement, Dashrath Manjhi was referred to AIIMS, New Delhi. The said agreement has been annexed as annexure-4 to this application. There is no dispute about the fact that Dashrath Manjhi passed away at AIIMS, New Delhi on 17.08.2007. 4. The case of petitioners is that, after the said agreement, they started studying and recording various facets on life history of Dashrath Manjhi, got the story prepared and registered the said with the Script Writers Association, Mumbai on 16.10.2012. Petitioner No.1 is said to have learnt from Rajendra Paswan that a team was found engaged in shooting a film on the life of Dashrath Manjhi in his village. Accordingly, Title Suit No. 814 of 2012 was filed by the petitioners seeking following reliefs:- (i) That on adjudication of facts stated above it be declared that plaintiff No.1 has the exclusive right to prepare feature film on the life of Late Dashrath Manjhi and none else including the defendants. (ii) That the defendants be restrained permanently from making any film on the life of Dashrath Manjhi and to the same effect by an order of ad-interim injunction during the pendency of the suit. (iii) That cost of the suit be awarded to the plaintiffs. (iv) That any other relief to which the plaintiffs be deemed entitled be also awarded to the plaintiffs. 5. This is to be noted that before the institution of the suit, the petitioners are said to have served upon the respondents a legal notice on 31.10.2012 stating all these facts, contending that petitioner No.1 had exclusive right to make and screen the feature film on the life of Dashrath Manjhi in terms of the said agreement dated 24.07.2007. 6. Respondent No.1, who is defendant in title suit, has been described as Director of Maya Movies Pvt. Ltd. based in Mumbai. He is said to be directing the feature film on Late Dashrath Manjhi and is a well known director of films of the country. Respondent No.2 is son of Late Dashrath Manjhi. It is said that respondent No. 1 is making/ has made feature film on the life of Late Dashrath Manjhi, after having taken approval from respondent No.2, son of Late Dashrath Manjhi . 7. Respondent No.2 is son of Late Dashrath Manjhi. It is said that respondent No. 1 is making/ has made feature film on the life of Late Dashrath Manjhi, after having taken approval from respondent No.2, son of Late Dashrath Manjhi . 7. An application under Order 39 Rule 1 of the Code was filed by the petitioners in the court of Sub Judge-X, Patna seeking an order of injunction restraining the respondents from screening the film prepared on the life of Late Dashrath Manjhi. By an order dated 16.03.2013 learned Sub Judge-X, Patna granted ad interim injunction restraining the respondent No.1 from releasing the film on the life Late Dashrath Manjhi, during the pendency of the suit. An appeal was, thereafter, preferred against the said order vide Miscellaneous Appeal No. 10/2013. Learned Additional District Judge, 10, Patna vide his order dated 30.07.2013 allowed the appeal and set aside the order dated 16.03.2013 passed by learned Sub Judge-X, Patna. The said order dated 30.07.2013 passed by learned Additional District Judge, 10 Patna is the order impugned in the present application under Article 227 of the Constitution of India. 8. Mr. Basant Kumar Choudhary, learned senior counsel appearing on behalf of the petitioners, has contended that by virtue of the agreement dated 24.07.2007, as contained in annexure-4 to this application, the petitioner No.1 has acquired exclusive right from Late Dashrath Manjhi himself to publish or screen any material on the life of Late Dashrath Manjhi. He submits that publication or screening of any material by any other person dealing with the life of Dashrath Manjhi, particularly, his personal life would amount to infringing the right of privacy, which Dashrath Manjhi enjoyed during his lifetime. He submits that Late Dashrath Manjhi had given consent exclusively to the petitioners for publication or screening of any material on his life and any violation of such consent would amount to invasion of right of privacy. In support of his contention, he has placed reliance on the following judgements of the Supreme Court and a few High Courts of this country:- (i) (1994) 6 SCC 632 (R. Rajgopal v. State of Tamilnadu & Others) (ii) 2013 (1) MWN (Civil) 414 (Akshaya Creations, rep. by its Producer v. A.M.R. Ramesh & another) (iii) (1995) 32 DRJ 142 : (1995) 57 DLT 154 (Phoolan Devi v. Shekhar Kapoor & Ors.) 9. by its Producer v. A.M.R. Ramesh & another) (iii) (1995) 32 DRJ 142 : (1995) 57 DLT 154 (Phoolan Devi v. Shekhar Kapoor & Ors.) 9. He has further submitted that petitioner No.1 has acquired copyright within the meaning of Section 14 of the Copyright Act, 1957 as Dashrath Manjhi had assigned such copyright to him of his work by virtue of the said agreement dated 24.07.2007. He has relied upon paragraph 80 of the Supreme Court judgement reported in the case of Super Cassettes Industries Ltd. v. Music Broadcast (P) Ltd., (2012) 5 SCC 488 . He submits, with reference to Section 13 of Copyright Act, 1957 that original literary work would mean and include an idea also. He further submits and reiterates that Late Dashrath Manjhi was the first owner of copyright with respect to the work which he did, and for which he came into prominence. He has attempted to compare the requirement of consent of a person for publication of any material on his life as his copyright, being the first owner of such copyright. Referring to the impugned order, he submits that only such part of someone’s life can be said to be within public domain which are based on public records. Accordingly, the facts about the life of Dashrath Manjhi which are not based on public records cannot be said to be within public domain and publication of material in violation of the consent given by Late Dashrath Manjhi in favour of petitioner No.1 would be violative of right to privacy of Dashrath Manjhi and, therefore, would amount to infringement of fundamental right under Article 21 of the Constitution of India. 10. Mr. Awadhesh Kumar Mishra and Ms. F. C. Karbhari, learned Advocates appearing on behalf of respondent No.1, on the other hand, while supporting the impugned order contended that petitioners have failed to make out a prima facie case in their favour, as the agreement dated 24.07.2007 cannot be termed a contract within the meaning of Section 25 of the Indian Contract Act and, therefore, was not enforceable in a court of law nor it could be said to be the assignment within the meaning of Section 18 of the Copyright Act, 1957. It has been submitted on behalf of respondent No.1 that in order to attract Section 18 or 19 of the Copyright Act, 1957 there must exist some work within the meaning of Section 2(y) and Section 13 of the Copyright Act, 1957. It has been submitted that as there can be no copyright with respect to an idea only, unless work on the basis of such idea comes into existence, there would be no question of subsistence of any copyright. It has been submitted that, as per the assignment of the petitioners, their work came into existence on 16.10.2012 when the work was registered with Script Writers Association, Mumbai whereas the script for the film directed by respondent No.1 was registered with such association on 24.11.2011 itself. It has further been submitted that petitioners have no locus standi to enforce the alleged fundamental right of Dashrath Manjhi, particularly, when his family members have no such grievance and his son, respondent No.2, has given his approval to respondent No.1 for screening the film. 11. In the background of the facts and circumstances and the submissions made on behalf of the parties, this court is required to test as to whether the impugned order by learned Additional District Judge, 10, Patna has been validly passed, setting aside the order of learned trial court, by which injunction was granted in favour of petitioner No.1 and the respondent No.1 was restrained from screening the film on the life of Dashrath Manjhi in the name and style of “Mountain Man”. 12. The cardinal principles for grant of injunction under Order 39 Rule 1 of the Code are well known and have been reiterated by the courts repeatedly. A court while considering an application under Order 39 Rule 1 of the Code is required to consider the following aspects:- (i) Whether the plaintiff has prima facie case, (ii) Whether balance of convenience is in favour of the plaintiff and (iii) Whether the plaintiff will suffer irreparable loss and injury if an order of injunction was not passed. 13. In exercising power under Order 39 Rule 1, all these three ingredients must co-exist. In the absence of any of these three ingredients, the court would refrain from passing an order of injunction under Order 39 Rule 1 of the Code. 13. In exercising power under Order 39 Rule 1, all these three ingredients must co-exist. In the absence of any of these three ingredients, the court would refrain from passing an order of injunction under Order 39 Rule 1 of the Code. Evidently, second and third factors would be required to be examined only after the plaintiff establishes the first one, i.e., he has been able to establish a strong prima facie case in his favour. 14. I, therefore, would first consider whether on the basis of pleadings and submissions, the petitioners/ plaintiffs have been able to make out a prima facie case in their favour or not. 15. From the pleadings in the present application, I find that the entire case of the petitioners hinges around the said agreement dated 24.07.2007, which is annexure-4 to the present application, which, according to them, bears thumb impression of Dashrath Manjhi attested by Rajendra Paswan and Rajesh Nath Ram. Date of the agreement is in serious dispute, as raised in course of argument by learned counsel for the respondent No.1, as, according to them, on 24.07.2007 Dashrath Manjhi was seriously ill and was admitted in AIIMS, New Delhi, though this fact has been disputed strongly by learned counsel for the petitioners by submitting that Dashrath Manjhi was taken to AIIMS, New Delhi from PMCH, Patna on 24.07.2007 and thumb impression was taken when he was in PMCH, Patna before leaving for New Delhi. I do not intend to delve into such dispute for the purpose of the present application. 16. The document dated 24.07.2007, as contained in annexure-4 to the present application, in my opinion, cannot be termed as an agreement or contract enforceable by law as it does not contemplate any consideration and is, therefore, hit by Section 25 of the Indian Contract Act. In order to develop a case that there was an element of consideration, it has been stated in the present application that in course of treatment of Dashrath Manjhi in AIIMS, the petitioner No. 1 used to look after him and used to support him financially, and such financial support would mean consideration money. Such plea cannot be accepted by this court as the said support, as alleged, is not part of, or in pursuance of the agreement between Dashrath Manjhi and petitioner No.1 17. Such plea cannot be accepted by this court as the said support, as alleged, is not part of, or in pursuance of the agreement between Dashrath Manjhi and petitioner No.1 17. It has been submitted that case of the petitioners is covered by Section 25(2) of the Indian Contract Act as there was a promise to compensate. There is no such element present in the agreement and such submission, therefore, cannot be accepted prima facie. 18. The case of the petitioners is now to be tested as to whether the said document dated 24.07.2007 can be treated to be an assignment of copyright within the meaning of Section 18 of the Copyright Act, 1957 (‘hereinafter referred to as the Act’). Before I refer to Section 18 of the Act, it would be apposite to refer to certain provisions of the Act. Section 2(y) of the ‘Act’ defines work as- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii)a sound recording. 19. Chapter 3 of the Act deals with copyright. Section 13 of the Act refers to the classes of works with respect to which the copyright subsists. The classes of works are same as “work” as defined under Section 2(y) of the Act. Section 14 of the Act defines copyright as: “the exclusive right to do or authorize doing of any of the acts enumerated in the said provision in respect of a work or any substantial part thereof”. Apparently, meaning of copyright as given in Section 14 of the Act refers to “acts in respect of a work”. Section 14, evidently therefore, needs to be read with Section 2(y) of the Act which defines work as such classes of works as mentioned in Section 2(y). 20. Learned senior counsel appearing on behalf of the petitioners has vehemently submitted that work done by Late Dashrath Manjhi itself comes within the meaning of “work” under Section 2(y) and Section 13 of the Act. According to him, a man’s life is a story in itself and every man is the first owner of copyright of his life. 21. Section 17 of the Act falls under Chapter 4 of the Act which deals with first owner of a copyright and declares that the author of a work shall be the first owner of the copyright therein. 21. Section 17 of the Act falls under Chapter 4 of the Act which deals with first owner of a copyright and declares that the author of a work shall be the first owner of the copyright therein. Author has been defined under Section 2(d) of the Act in relation to a literary or dramatic work, as the author of that work. Section 18 enables owner of the copyright in an existing “work” or the prospective owner of the copyright in future work to assign to any person his copyright either wholly or partially. It, however, provides that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. Section 19 of the Act deals with mode of assignment. Sub section 1 of Section 19 of the Act provides that no assignment of copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent. It provides that the assignment of copyright in any work shall also specify the amount of “royalty payable, if any” (before amendment in the provision w.e.f. 21.06.2012), to the author or his legal heirs during the currency of the assignment. Sub Section 4 of the Act provides that where the assignee does not exercise the right assigned to him under any of the other sub sections of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period, unless otherwise specified in the assignment. Sub section 5 provides that if the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. 22. In view of these provisions whether the petitioners have been able to make out a prima facie case that there subsists a copyright with them on the strength of document dated 24.07.07, is in my opinion, the crucial point which needs determination in the present case. 23. Dashrath Manjhi was an icon, even during his life time. As the legend goes, in the year 1960, his wife fractured her bones when she was going to fetch her husband from the field. 23. Dashrath Manjhi was an icon, even during his life time. As the legend goes, in the year 1960, his wife fractured her bones when she was going to fetch her husband from the field. The seriously injured lady could not be taken to hospital in time, as the Gehlor mountain came in between the way and hospital and his village, rendering the route insurmountably circuitous in course of time she died. Having lost his wife to the obstruction caused by Gehlor mountain, he resorted to conquer it by carving a road through it, so that the distance to the hospital could be substantially reduced. For twenty two long years, he worked single handedly, non-stop, to carve out a road through the mountain using only hammer and chisel. He risked his life and devoted his whole life for the public so that the travel from the village to the hospital could be shorter. His determination, devotion and achievement brought laurels to him and he got recognition for his work. This is the work which Dashrath Manjhi performed. To make out a case that by a document dated 24.07.2007, this work, done by Dashrath Manjhi was assigned to the petitioners under Section 18 of the Act, the petitioners are required to establish that work done by Dashrath Majhi, as explained above, can be said to be the ‘work’ within the meaning of Section 2(y) of the Act. 24. I am prima facie satisfied that the work performed by Dashrath Manjhi cannot be said to be the work within the meaning of Section 2(y) of the Act as it refers to a literary, dramatic, musical or artistic work, a cinematograph film and a sound recording. Work done by Dashrath Manjhi cannot be termed as a literary work as the word literary refers to “work pertaining to literature”. The meaning of literary as given in Black’s Law Dictionary, 6th addition, is as follows:- “Literary- Pertaining to literature; connected with authors and the study or use of books and writings. Literary Composition.- An original result of mental production, developed in a series of written or printed words, arranged for an intelligent purpose, in an orderly succession of expressive combinations. The meaning of literary as given in Black’s Law Dictionary, 6th addition, is as follows:- “Literary- Pertaining to literature; connected with authors and the study or use of books and writings. Literary Composition.- An original result of mental production, developed in a series of written or printed words, arranged for an intelligent purpose, in an orderly succession of expressive combinations. Literary Property.- The right which entitles an author and his assigns to all the use and profit of his composition, to which no independent right is, through any act or omission on his or their part, vested in another person. The exclusive right of owner to possess, use and dispose of intellectual productions. The term denotes the corporal property in which an intellectual production is embodied; and it may consist of letters, lectures, sermons or addresses. Literary work. Under Copyright Act, “literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes disks, or cards in which they are embodied.” 25. Similarly, in view of Section 13 of the Act, copyright subsists with respect to original literary works. Having dealt with Section 2(y) of the Act containing definition of work, I am of the prima facie view that no copyright subsists or ever subsisted with Dashrath Manjhi for the work which he did as the work which he did is neither literary nor dramatic nor musical nor artistic. Having formed my prima facie opinion that no copyright subsists with Dashrath Manjhi, there would be no question of assignment of copyright which did not subsist within the meaning of Section 18 of the Act. 26. In my opinion, even if, for the time being, it is presumed that there existed such assignment, in view of Sub sections 4 and 5 of Section 19 of the Act, it appears, prima facie, that assignment in respect of such right lapsed as the assignment is said to have been made on 24.07.2007 but the work could not come into existence within the period of five years from the date of assignment. 27. An argument has been advanced that, as a matter of fact, a story on the life of Dashrath Manjhi was already written in 2006 itself. 27. An argument has been advanced that, as a matter of fact, a story on the life of Dashrath Manjhi was already written in 2006 itself. I do not find such pleading in the present application, nor such fact, in my opinion, will make any difference. 28. In view of the above, I am of the prima facie view that the petitioners cannot claim any copyright under the Act on the strength of the agreement dated 24.07.2007. 29. There is another aspect of the matter which I am required to deal with. Whether the petitioners can maintain a claim that screening of film on Dashrath Manjhi by the respondents, in the facts and circumstances of the case, would amount to infringing upon the right of privacy of Dashrath Manjhi, which claim is again based on the same document dated 24.07.2007. 30. As has been mentioned above, learned senior counsel for the petitioners has placed heavy reliance upon the Supreme Court judgement in the case of R. Rajgopal v. State of Tamilnadu & Ors (supra). Special emphasis has been given on paragraphs 8, 9 and 26 of the said judgement. The question in the present case is as to whether the petitioners can stand up in protection of the right of privacy of Dashrath Manjhi on the basis of so called assignment dated 24.07.2007. 31. This is to be kept in mind that Dashrath Manjhi is no more. None of his family members have raised any grievance. His son, respondent No.2 in the present application, has approved screening of the film directed by respondent No.1. In the case of R. Rajgopal v. State of Tamilnadu (supra) the Supreme Court was examining the validity of a communication made by State officials of Tamilnadu whereby the editor, printer and publisher of a Tamil weekly Nakkheeran were sought to be restrained from publication of autobiography of a condemned prisoner Auto Shankar. In such circumstance, the said printer, editor and publisher had approached the court questioning the authority of the State officials in issuing such restraint order. In that background the Supreme Court held that a citizen had a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. In such circumstance, the said printer, editor and publisher had approached the court questioning the authority of the State officials in issuing such restraint order. In that background the Supreme Court held that a citizen had a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. The Supreme Court, in such circumstance, had finally held that petitioners had a right to publish the life story of Auto Shankar insofar as it appeared from the public records, even without his consent or authorization. But if they go beyond that and publish his life story, they might be invading his right to privacy and will be liable for the consequences in accordance with law. 32. Accordingly, if the screening of the film amounts to invading the privacy in the life of Dashrath Manjhi, his publishers may be liable to consequences in accordance with law but they cannot be restrained from such publication or screening. 33. Learned senior counsel has also placed reliance on the case of Phoolan Devi v. Shekhar Kapoor & Ors. (supra) to contend that without consent of the person concerned, no biography or biopic can be published or screened. 34. In my opinion, ratio of that case will not apply, in the facts and circumstances of the present case, for the reason that in that case Phoolan Devi had herself approached the court asserting infringement of right of privacy with specific allegation as to how such right of her was going to be invaded by screening of film which was subject matter of that case. In the present case, the petitioners are claiming the right of privacy of late Dashrath Manjhi being invaded who is dead and none of his family members is raising any such grievance. The petitioners are not trying to enforce the right of privacy of the life of Dashrath Manjhi pro bono publico rather their claim is based on the document dated 24.07.2007. In such view of the matter, the case of Phoolan Devi v. Shekhar Kapoor (supra) will have no application in the facts and circumstances of the case. 35. As has been noted above, learned senior counsel appearing on behalf of the petitioners took a plea that work within the meaning of Section 13 of the Act includes an idea in the mind of the author. 36. 35. As has been noted above, learned senior counsel appearing on behalf of the petitioners took a plea that work within the meaning of Section 13 of the Act includes an idea in the mind of the author. 36. In my opinion, such submission cannot be accepted in view of Supreme Court judgement reported in AIR 1978 SC 1613 (R. G. Anand v. Delux Films & Others.). paragraph 46 (i) of the said judgement reads as follows:- “46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge :- There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work”. 37. This is also to be noted that it is not the case of the petitioners that the work of the petitioners already accomplished on the life of Dashrath Manjhi is being reproduced or being attempted to be reproduced by the respondent No.1 either fully or substantially or even partially. 38. In view of the Supreme Court judgement referred to above in the case of R. G. Anand v. Delux Films (supra), I am of the prima facie view that petitioners cannot claim violation of any copyright. 39. Last but not the least, this is admitted position that the work done by respondent No.1 is ready for screening but the petitioners have not even begun shooting of their proposed film. If injunction is granted restraining the respondents, it will cause much inconvenience to them. In view of above, I do not find any infirmity with the impugned order. This writ application is, accordingly, dismissed.