# Uday Prakash v. Anand Pandit & Anr

- **Citation:** (2021) 9 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** FAFO Defective No. 432 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-prakash-v-anand-pandit-anr-47585
- **Pages:** 25

## Headnote

Sri Ankur Tandon, Sri Anubhav Shukla, Sri
Rahul Agarwal, Sri Rahul Rathi, Sri Ram
Shiromani Shukla, Sri Prafull Shukla, Sri
Nishchal Anand, Sri Shashi Nandan (Senior
Adv.)

Copyright
infringement-application
of
temporary injunction rejected-appeal-no
prima facie plagiarism -impugned order
not disturbed.

Appeal disposed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,816 of 87,114. This is a partial read: ask again with offset=39816 for what follows._

378 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Office to give regular number to
the appeal.

(Ref : Civil Misc. Correction No. 4 of
2021)

1. Heard.

2. This is an application seeking
correction in the order dated 29.7.2021
passed by this Court.

3. Correction is allowed.

4. In the first line of paragraph No.
21, the word 'appellants' be replaced with
the
words
'respondent-Insurance
Company'.

5. The aforesaid correction be made
and the corrected copy of the order dated
21.5.2019 be given to the parties.
----------
(2021)09ILR A378
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

FAFO Defective No. 432 of 2021

Uday Prakash ...Appellant
Versus
Anand Pandit & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Shantanu, Ms. Poonam Meena, Sri
Mahir Malhotra, Sri Raj Kumar Dhama, Sri
Gaurav Bhardwaj

Counsel for the Opposite Parties:
Sri Ankur Tandon, Sri Anubhav Shukla, Sri
Rahul Agarwal, Sri Rahul Rathi, Sri Ram
Shiromani Shukla, Sri Prafull Shukla, Sri
Nishchal Anand, Sri Shashi Nandan (Senior
Adv.)

Copyright
infringement-application
of
temporary injunction rejected-appeal-no
prima facie plagiarism -impugned order
not disturbed.

Appeal disposed. (E-9)

List of Cases cited:

1. Fateh Singh Mehta Vs O.P. Singhal & ors.,
1989 SCC OnLine Raj 9

2.Wander Ltd. & anr. Vs Antox India P. Ltd.,1990
(SUPP) SCC 727

3. Gopal Krishnaji Ketkar Vs Mohamed Haji Latif
& ors., AIR 1968 SC 1413

4. P.G. Narayanan Vs The U.O.I., rep. by the
Secretary,
Ministry
of
Information
&
Broadcasting, Sastri Bhavan, New Delhi-110 001
& ors., 2005 SCC OnLine Mad 379

5. Super Cassettes Industries Pvt. Ltd. & anr. Vs
Nandi Chinni Kumar & ors., 2020 SCC OnLine TS
1282

6. Mansoob Haider Vs Yashraj Films Pvt. Ltd.
2014 SCC OnLine Bom 652

7. Graigola Merthyr Comp. Ltd. Vs Mayor
Alderman, [1928] Ch. 235

8. Burjesses of Swansea7 & Zee Entertainment
Enterprises Ltd. Vs Sony Pictures Network Pvt.
Ltd., 2017 SCC OnLine Bom 409

9. Akashaditya Harishchandra Lama Vs Ashutosh
Gowarikar, 2016 SCC OnLine Bom

10.John Hart Jr. & anr.Vs Mukul Deora & ors.,
2021 SCC OnLine Del 3499

11. XYZ Films Vs UTV Motion Pictures/ UTV
Software Communications Ltd, 2016 (67) PTC81
(Bom)

12. Macmillan & Comp. Ltd. Vs K. & J. Cooper,
AIR 1924 Privy Council 75
9 All. Uday Prakash Vs. Anand Pandit & Anr.
379
13. Law Society of Upper Canada Vs CCH
Canadian Ltd., 2004 SCC OnLine Can SC 13

14. Greene Vs Bishop, 10 Fed Cas 1128

15. M/s. Mishra Bandhu Karyalaya & ors. Vs
Shivratanlal Koshal, 1969 SCC OnLine MP 35

16. K.C. Bokadia & anr. Vs Dinesh Chandra
Dubey, 1995 SCC OnLine MP 191

17. n The Daily Calendar Supplying Bureau,
Sivakasi Vs The United Concern, 1964 SCC
OnLine Mad 29

18.R.G. Anand Vs Delux Films & ors., (1978) 4
SCC 118

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiff's appeal from an
order of Mr. Jitendra Kumar Sinha, the
learned District Judge, Ghaziabad, rejecting
his application for temporary injunction in
a suit for infringement of copyright.

2. The suit was instituted, complaining
infringement of a copyright owned by the
plaintiff relating to a story-screenplaydialogues for a feature film, registered with
the Copyright Office at New Delhi under
Registration
No.
L-28822/2007
dated
16.07.2007. The literary work aforesaid was
registered under the name of ''Highway-39'.
The aforesaid literary work shall hereinafter
be referred to as the ''copyrighted work'. The
suit, wherein the temporary injunction
application was made, was instituted some
time in the month of December, 2019 and
registered on the file of the learned District
Judge, Ghaziabad as Suit no.2 of 2019. The
following reliefs have been claimed in the
suit against the two defendants, who are the
respondents here:

"A.
pass
a
decree
of
Perpetual/Permanent injunction:

i. by restraining the defendants,
jointly and severally, by themselves or
acting through any agent or any other such
person from infringing the registered
copyright of the plaintiff in respect of his
story and screenplay work titled as
'Highway-39' from converting and adopting
the same into a motion picture/feature film
in any name whatsoever;

ii. by restraining the Defendants,
jointly or severally, by themselves or acting
through their agents or any such person
from
producing,
making,
promoting,
publicizing, releasing, communicating to
public about the infringed feature film.

B. pass a decree of Mandatory
injunction directing the defendants to
jointly or severally:

i. to deliver all versions of the
story/ script/ screenplay (literary work),
reels and / or the produced work based on
the registered copyright work of the
plaintiff pertaining to the infringed feature
film;

ii. to remove from internet and
other similar platforms, including social
media pertaining to the defendants and/or
of social media account of any of the
actors or any other such person involved
with the production and making of the
infringed feature film, including the
removal of any and all promotional
material (including posters, trailers and
teaser) of the infringed feature film;

C. pass a decree for the rendition
of accounts of the advance amount
received by the Defendants from the
Distribution
Companies/
Television
Channels/ Internet Television Network by
selling the distribution rights/ satellite
rights / streaming rights respectively of the
feature film made by the defendants by
infringing the copyright of the plaintiff in
the process of producing the infringed
feature film;"
380 INDIAN LAW REPORTS ALLAHABAD SERIES

3. It would be apposite to give a more
detailed account of the facts giving rise to
this appeal. The plaintiff-appellant, Uday
Prakash, who shall hereinafter be referred
to as the ''plaintiff', is claimed to be a Hindi
Poet, Scholar, Filmmaker, Journalist and
one who has worked as a Professor with
Central Universities. The plaintiff also
claims to have worked as an Administrator
with the Government of India, but which
department, is not explicit in the plaint. He
also says that he has been an Editor,
Researcher and Television Director with
the National and Private TV Channels. He
writes for major national dailies and
periodicals on issues of social and cultural
significance. There is an elaborate pleading
by the plaintiff, showing his established
scholarly status, besides an impressive list
of accolades that stand to his credit in the
form of prestigious literary awards and
literary works of repute.

4. It is the plaintiff's case that he
conceived, conceptualized and set about a
venture to write a screenplay (film script),
that is to say, the copyrighted work, already
introduced hereinbefore. The plaintiff says
that he completed the copyrighted work
and got the same registered with the Film
Writers
Association,
Mumbai.
The
aforesaid literary work was submitted to
the Copyright Office, New Delhi, where it
was
registered
on
16.07.2007
under
Registration
No.
L-28822/2007.
The
plaintiff says that he discussed the
copyrighted
work
with
one
of
his
acquaintances, Mazhar Kamran, who was,
at the relevant time, working with the
plaintiff as a Cameraman on several audio
visual projects that the plaintiff had in hand
during the years 2000-2005. Mazhar
Kamran is said to have assured the latter
that he would show the copyrighted work
to a few prominent producers, of whom
Anand Pandit was one. Anand Pandit is
defendant no.1 to the suit and respondent
no.1 to this appeal, who shall hereinafter be
referred to as ''defendant no.1'. Defendant
no.1 is said to be a well-known producer
and proprietor of a certain Anand Pandit
Motion Pictures, whereas Rumi Jaffery is a
well-known Director. Rumi Jaffery of
Saraswati Entertainment Pvt. Ltd., Mumbai
is the second defendant to the suit and the
second respondent to this appeal. He shall
hereinafter be referred to as ''defendant
no.2'. Wherever a joint reference to
defendant nos.1 and 2 is necessitated by the
context,
they
shall
be
called
the
''defendants'.

5. It is the plaintiff's case that in or
about the month of June, 2019, he came to
know, from reliable sources in the Film
Industry, that defendant no.1 is making a
movie under the direction of defendant
no.2, which is very similar to the
copyrighted work. The plaintiff claims that
he was given information that defendant
no.1 has scheduled a release of the movie
under the name and title of ''Chehre'. The
plaintiff also asserts that he read news and
collected information available in the
public
domain
that
the
movie,
last
mentioned,
went
into
production
somewhere around the month of May,
2019. The movie ''Chehre' shall hereinafter
be called the feature film. The plaintiff
asserts that he received reliable information
from the Film Industry that the feature film
is based exactly on the same ''plot and
premise' as the plaintiff's copyrighted work.
The plaintiff took legal advice and caused a
''cease and desist' notice to be issued to the
defendants on 14.06.2019. The notice, last
mentioned, called upon the defendants to
cease and desist from using any portion of
the
copyrighted
work,
including
his
professional, intellectual and creative ideas
9 All. Uday Prakash Vs. Anand Pandit & Anr.
381
that have gone into the story and
presentation. The defendants were asked to
forthwith cease their production of the
feature film based on the copyrighted work
as it would infringe the plaintiff's registered
copyright.

6. The notice is said to have been
answered through a reply of June the 29th,
2019,
denying
infringement
of
the
copyrighted work. It is said by the plaintiff
that
the
defendants
are
knowingly
indulging in infringement of the plaintiff's
copyright. They have signed high profile
artists to work in the feature film without
taking the plaintiff's permission for the use
of the copyrighted work, converting his
literary work into a motion picture. It is
also said that the plaintiff has not so far
assigned
or
transferred
or
sold
his
copyright in the copyrighted work to any
third party; he holds it in his name alone.
The violation of the plaintiff's copyright
has been claimed to cause loss of name and
reputation to the plaintiff. It is said the
infringement, that would come about in
consequence of production and release of
the feature film, would cause the plaintiff
severe harassment, loss of reputation and a
cascading
effect
on
the
plaintiff's
professional
prospects,
vis-a-vis
his
reputation as an author in general and the
copyrighted work in particular.

7. It is claimed that the wrong done by
the
defendants
not
only
constitutes
infringement of the plaintiff's registered
copyright but an act of breach of confidence,
besides unlawful trade. It has the effect of
depriving the plaintiff of the fruits of his
intellectual labour created by investment of
colossal time, intellect and effort.

8. Alongside the suit, an application
for interim injunction under Order XXXIX
Rules 1 and 2 read with Section 151 CPC
was also made with a rather curiously
worded prayer. The prayer in the temporary
injunction application reads:

"In
the
above
mentioned
circumstances and in the interest of justice
this Hon'ble Court may be pleased grant adinterim ex-parte injunction in favour of the
applicant/
plaintiff
and
against
the
defendants, his associates, musclemen,
agent, legal heirs, representatives etc, till
the pendency of the suit."

9. One would expect the prayer in the
application for interim injunction to be
somewhat similar in terms of the relief
claimed in the plaint, but that is not so.
However, it does not appear that the Trial
Court has gone much by that technicality.
Instead, the Trial Court has substantially
read the prayer in the temporary injunction
application to be one in aid of the main
relief, directed to forbid the defendants,
pending suit, from producing and/ or
releasing the feature film. Again, the Trial
Judge has not expressly said so, but the
tenor of his order leaves this Court in no
manner of doubt that, that is how he has
construed the prayer for interim injunction
and decided it by the order impugned.

10. A written statement was filed in
opposition to the suit on behalf of
defendant no.1. It raises preliminary
objections going to the root of the action
for infringement of copyright, besides those
saying in much detail that no cause of
action was disclosed. It was also pleaded
that the copyrighted work was devoid of
ingenuity and originality as it is an
adoption of a banal theme in the public
domain. The copyrighted work is said to
have been borrowed from a novel titled "A
Dangerous Game" written by a Swiss
382 INDIAN LAW REPORTS ALLAHABAD SERIES
author, Friedrich Durrenmatt. It was
pleaded that the theme and plot of the
copyrighted work is drawn substantially
from the last mentioned novel and,
therefore, lacks originality. It is also said
that this work is known by different titles in
different parts of the world. It is published
under the title ''Traps' in the United States
and ''Die Panne' in Germany. The work of
the Swiss author is said to form the basis
not only of stage plays, but also films and
TV shows. It is said to have been adopted
into Hindi and Marathi stage plays, that
have been professionally performed in
India. It has also been pleaded by defendant
no.1 that the feature film is in no manner
similar, or connected with the copyrighted
work nor does it infringe it in any manner.

11. It was also said by the defendants
in the written statement and in opposition
to the application for temporary injunction
that the film was not scheduled to be
released in the month of February, 2020
and the suit was, therefore, no more than a
quia timet action, that was founded on
unreliable
sources
and
erroneous
apprehension.

12. Heard Mr. Gaurav Bhardwaj, Mr.
Shantanu, Ms. Poonam Meena, Mr. Mahir
Malhotra, Mr. Raj Kumar Dhama, learned
Counsel for the plaintiff and Mr. Shashi
Nandan, learned Senior Advocate assisted
by Mr. Ankur Tandon, learned Counsel for
respondent no.1 and Mr. Rahul Agarwal,
learned Counsel along with Mr. Anubhav
Shukla, Mr. Prafull Shukla, Mr. Nishchal
Anand, learned Counsel appearing on
behalf of respondent no.2.

13. Before this Court, the matter was
very elaborately argued on behalf of the
plaintiff by Mr. Gaurav Bhardwaj, learned
Counsel, very ably assisted by Mr.
Shantanu, Ms. Poonam Meena, Mr. Mahir
Malhotra,
Mr.
Raj
Kumar
Dhama,
Advocates. Mr. Bhardwaj was particularly
critical of the learned District Judge's order
refusing the temporary injunction on
parameters completely irrelevant to judge a
case for a temporary injunction in a suit for
infringement
of
copyright.
He
has
particularly submitted that the remarks in
the impugned order that say that the
copyrighted work though registered is an
unpublished
document
are
absolutely
extraneous to the consideration of a case
for grant of a temporary injunction. He has
also criticized the learned District Judge's
remark to the effect that once the plaintiff
pleaded that he had discussed the contents
of the copyrighted work with Mazhar
Kamran, the plaintiff ought to have
impleaded him as a party to the suit.

14. This Court must say that both
these remarks in the learned District
Judge's order are indeed not relevant to
judge a plea for the grant of a temporary
injunction in an action for copyright
violation.
An
unpublished
copyright,
unregistered or registered, is protected
intellectual
property.
It
cannot
be
plagiarized merely because the owner of
the copyright has not published it until the
time of infringement. The other remark
about the failure to implead Kamran as a
party to the suit by the plaintiff, is also
besides the point. Merely because the
plaintiff claims that he had discussed the
copyrighted work with Kamran, does not
oblige him to implead Kamran as a
defendant to the suit. This is so because on
the cause of action disclosed in the plaint,
the plaintiff does not claim any relief
against Kamran. The relief has been
claimed
against
the
defendants.
The
plaintiff's case may require Kamran to be
examined as a witness, but there is
9 All. Uday Prakash Vs. Anand Pandit & Anr.
383
absolutely no necessity to implead him as a
defendant to the suit. On both these
premises, Mr. Bhardwaj is right that the
learned District Judge has gone wrong. But,
these infirmities are not all that the refusal
of temporary injunction is about. There is
much more to it.

15. It has next been submitted by Mr.
Bhardwaj that there is an error apparent on
the face of the record committed by the
learned District Judge while writing the
impugned order. He submits that this is so
because the learned Judge has dealt with
the matter as if he were holding a summary
trial. The learned Counsel says that this is
further so because the learned Judge sought
evidence to be led at the stage of
consideration of the temporary injunction
matter, which is manifestly illegal. This
could be urged as a case of manifest
illegality, but certainly not an error
apparent. This is not to say that this Court
accepts the submission of the learned
Counsel for the plaintiff that the learned
District Judge indeed required evidence to
be led like a summary trial, or that his order
is illegal on that count. The submission
would be considered a little later in this
judgment.
Learned
Counsel
for
the
plaintiff, in support of this submission, has
placed reliance upon a decision of the
Rajasthan High Court in Fateh Singh
Mehta v. O.P. Singhal & Ors.1. He has
also depended upon a decision of the
Supreme Court in Wander Ltd. & Anr. v.
Antox India P. Ltd., 19902. These
decisions too would be alluded to later.

16. It is next submitted by Mr.
Bhargav that the sole substantial defence of
the defendants is that
there
is no
comparison pleaded by the plaintiff about
the similarity between the feature film and
the copyrighted work, which, according the
learned Counsel for the plaintiff, is
fallacious. He submits that this plea does
not lie in the defendants' mouth, inasmuch
as the plaintiff had moved an application
for discovery of documents under Order IX
Rule 12 CPC (along with a notice for
production of document under Order XII
Rule 8 CPC) seeking a direction from the
Court to the defendants to discover the
story/ script of his screenplay that was the
edifice of the feature film before the Trial
Judge; but in answer to the said application,
the defendants filed a reply, refusing to
discover. He submits that defendant no.1
refused to submit the script before the
learned District Judge for his perusal and
comparison as it was said that it would
jeopardize the commercial viability of the
project. It is urged that once the defendants'
script, that is the foundation of the feature
film, was not accessible to the plaintiff, he
could not be expected to plead details of
the comparison between the feature film
and the copyrighted work. In support of his
submission,
learned
Counsel
for
the
plaintiff has depended on a decision of the
Supreme
Court
in
Gopal
Krishnaji
Ketkar v. Mohamed Haji Latif & Ors.3.

17. It is next submitted that there is a
vague plea urged on behalf of the
defendants that belated approach to this
Court against the impugned order dated
08.04.2021, on the eve of release of the
movie, disentitles the plaintiff to relief. Mr.
Bhardwaj
submits
that
this
plea
is
misplaced because the whole nation had
plunged into a deep and devastating crisis
about time when the impugned order was
delivered, on account of second wave of
the Covid-19 pandemic that raged during
the months of April, May and June, 2021. It
is pointed out that the pandemic is still
going on. It is in those circumstances that
the plaintiff's timely pursuit of his appeal
384 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be viewed. The plaintiff, upon
coming to know on 14th August that the
defendants had declared that the movie
would be released in the theaters on August
the 27th, 2021, moved this Court on
19.08.2021, and then urgently mentioned
the matter to be taken up.

18. Learned Counsel for the plaintiff
next submits that the defendants' case that
the suit is a quia timet action based on a
mere apprehension is now no longer open,
nor was it ever open. It is something that
has to be seen in the plaintiff's favour. In
this connection, reliance has been placed on
a decision of the Madras High Court in
P.G. Narayanan v. The Union of India,
rep. by the Secretary, Ministry of
Information & Broadcasting, Sastri
Bhavan, New Delhi-110 001 and others4.

19. It is also urged by Mr. Bhardwaj
that the conduct of the defendants is mala
fide,
unscrupulous
and
fraudulent,
inasmuch as the defendants' project seeks
to financially capitalize on the plaintiff's
creativity, labour and scholarship. This they
seek to do in violation of a registered
copyright. In support of this part of his
submission,
learned
Counsel
for
the
plaintiff has placed reliance upon a
decision of the Telangana High Court in
Super
Cassettes
Industries
Private
Limited & Another v. Nandi Chinni
Kumar & Others5. It is also urged that the
learned District Judge has also erred in not
securing a copy of the script that is the
basis of the feature film and comparing it
with the copyrighted work; in the absence
of doing this, the learned Judge could not
have disposed of the temporary injunction
matter. It is in the last submitted that the
plea of the defendants not to interdict
release of the movie on ground that
investment worth hundreds of crores of
rupees have gone into its production is
abominable. Mr. Bhardwaj says that a
submission
of
this
kind
leaves
an
impression that is not seemly in a Court of
justice.

20. Mr. Shashi Nandan, learned
Senior Advocate assisted by Mr. Ankur
Tandon, learned Counsel for respondent no.
1 and Mr. Rahul Agarwal, along with Mr.
Anubhav Shukla, Mr. Prafull Shukla and
Mr. Nischal Anand, learned Counsel
appearing on behalf of respondent no. 2
have submitted in one voice that the
plaintiff's claim to have shared the
copyrighted work with Mazhar Kamran,
whom the plaintiff believes may have
passed on the script to the defendants, is
founded on sheer conjecture. There is not
the slightest proof offered that the plaintiff,
in fact, shared this script of the copyrighted
work with Mazhar Kamran or the further
proof that Mazhar Kamran, in turn, passed
on
that
intellectual
property
to
the
defendants. Mr. Shashi Nandan has drawn
the Court's attention to the plaint, where it
is said that the plaintiff, in the month of
June, 2019, had learnt from reliable sources
that defendant no. 1 is producing the
feature
film
under
the
direction
of
defendant no. 2 and that the story/ plot of
the
feature
film
is
similar
to
the
copyrighted work. It is emphasized that no
detail of "the reliable sources" have been
pleaded. The suit, therefore, in Mr. Shashi
Nandan's submission, is based on hearsay,
conjectures and surmises.

21. It is next submitted by the learned
Counsel for the defendants that the plaint
reveals that it is bereft of a cause of action,
let alone a prima facie case. Attention of
the Court is drawn to Paragraph no.5 of the
plaint, that purports to plead the cause of
action. It is submitted by the learned Senior
9 All. Uday Prakash Vs. Anand Pandit & Anr.
385
Counsel and Mr. Agarwal that the plaintiff
has failed to disclose facts and documents
in support of the cause of action. It is
particularly urged that the plaint fails to
disclose that :

(a) The copyrighted work is an
original literary work;

(b) Defendant no. 1 had access to
the copyrighted work; and

(c) The script of the feature film
is substantially similar to the copyrighted
work.

22. It is next urged on behalf of the
defendants that plaintiff has not revealed
any material to indicate the defendants'
access to the copyrighted work. Reliance
has been placed on the decision of the
Bombay High Court in Mansoob Haider
v. Yashraj Films Private Ltd.6. It is also
urged that the plaintiff merely rests his case
on speculation that is far from one that
meets the minimal standard of proof.

23. Learned Senior Counsel for the
defendants says that at best, it can be
construed as a quia timet action, where the
burden of proof is much greater on the
plaintiff in comparison to an action for
injunction, where an actual injury is
sustained
by
the
plaintiff
contradistinguished from an apprehended injury.
In support of this submission, reliance has
been placed on the decisions of the
Bombay High Court in Graigola Merthyr
Company Limited v. Mayor Alderman
and Burjesses of Swansea7 and Zee
Entertainment Enterprises Ltd. v. Sony
Pictures Network Pvt. Ltd.8. It is further
argued that the reasonable apprehension
about an apprehended injury must arise
from credible information, the particulars
whereof are duly pleaded; that is utterly
wanting.

24. It is next submitted that a civil suit
cannot be a fishing or roving inquiry, but
must be based on established principles of
law and accurate pleadings. It is urged that
the plaintiff's application for discovery was
objected to by the defendants on facts and
grounds recognized in law. The Trial Judge
never directed the defendants to submit the
script for the Court's perusal. It is also said
that the application for discovery was never
allowed or the defendants permitted to
serve the notice that they enclosed with the
application. It has been particularly urged
before this Court that the defendants' script
that is the basis of the feature film and the
copyrighted work, both are inspired from a
theme of the mock trial contained in the
novel titled "A Dangerous Game". About
this novel, allusion has already been made
earlier in this judgment.

25. It has next been urged that a
comparison of the two scripts may show a
similarity between the common theme, but
the treatment of the subject by each party is
completely different. It is urged, therefore,
that it cannot be dubbed as an infringement
of the plaintiff's copyright. It is urged that
the plaintiff's claim does not at all make out
a prima facie case, as it is founded on utter
conjecture. It is an action that is designed to
prevent the defendants from commercially
exploiting the feature film, which is an
upcoming project nearing fruition. There is
no unimpeachable evidence of the kind and
degree required to make out a prima facie
case in an action that is essentially quia
timet. About the balance of convenience
here, it is said on behalf of the defendants
that the plaintiff has chosen to approach
this Court in appeal at the eleventh hour,
whereas the order impugned was passed on
8th April, 2021. It is said that this Court is
functioning normally since the month of
July, 2021 and physical hearing has been
386 INDIAN LAW REPORTS ALLAHABAD SERIES
going on for quite some time now. The
defendants also say that they are at the
threshold of release of the feature film in
India, which has already been released in
some foreign jurisdictions. The defendants
have entered into onerous contracts with
Over The Top (OTT) Platforms and film
distributors. Any embargo on the release of
the film would have a devastating effect on
the rights of the third parties. It would lead
to irreparable injury to the defendants and
many others, who have entered into
engagement with them. It is submitted that
on the other hand, in the off-chance, if the
plaintiff were to succeed in the action at the
trial, he can be easily compensated in
monetary value as well as by provision of
the intellectual credit for the movie. In
support of this part of the defendants'
submissions and the counts of irreparable
loss and balance of convenience, reliance
has been placed on a decision of the
Bombay High Court in Akashaditya
Harishchandra
Lama
v.
Ashutosh
Gowarikar9 and the decision of the Delhi
High Court in John Hart Jr. and Another
v. Mukul Deora and Others10.

26. This Court has keenly considered
the rival submissions advanced on behalf of
both sides and perused the record. The
submission of the plaintiff that the Trial
Judge has manifestly erred in expecting
evidence to be produced at the hearing of
the temporary injunction application, as if it
were a mini trial, is not one of much
substance. The reason is not far to seek.
The
fundamental
principles
of
law
governing
a
motion
for
temporary
injunction
pending
suit
requires
the
plaintiff to establish his prima facie case,
the irreparable loss that he would sustain
from a refusal of the injunction and the
balance of convenience. No doubt that this
tripod that holds a plea for a temporary
injunction firm is not required to be
established by evidence of the kind that is
expected to be led at the trial. But, it does
require a prima facie case to be established
and the two other ingredients by some
evidence that can be led on affidavits.
Temporary injunction matters are reputed
to be decided on affidavits, with copies of
documents annexed. The first requirement
about a prima facie case postulates that the
case pleaded in the plaint, on the foot of
which alone, the case for a temporary
injunction stands, should disclose prima
facie and not after a searching inquiry that
must await trial, that a triable case is made
out. The decision on this point urged on
behalf of the plaintiff is the one in Wander
Ltd. (supra). In Wander Ltd., it has been
held :

"9. Usually, the prayer for grant
of an interlocutory injunction is at a stage
when the existence of the legal right
asserted by the plaintiff and its alleged
violation are both contested and uncertain
and
remain
uncertain
till
they
are
established at the trial on evidence. The
court, at this stage, acts on certain well
settled principles of administration of this
form of interlocutory remedy which is both
temporary and discretionary. The object of
the interlocutory injunction, it is stated

"...is to protect the plaintiff
against injury by violation of his rights for
which
he
could
not
adequately
be
compensated in damages recoverable in the
action if the uncertainty were resolved in
his favour at the trial. The need for such
protection must be weighed against the
corresponding need of the defendant to be
protected against injury resulting from his
having been prevented from exercising his
own legal rights for which he could not be
adequately compensated. The court must
weigh one need against another and
9 All. Uday Prakash Vs. Anand Pandit & Anr.
387
determine
where
the
''balance
of
convenience' lies."

The
interlocutory
remedy
is
intended to preserve in status quo, the
rights of parties which may appear on a
prima facie case. The court also, in
restraining a defendant from exercising
what he considers his legal right but what
the plaintiff would like to be prevented,
puts into the scales, as a relevant
consideration whether the defendant has yet
to commence his enterprise or whether he
has already been doing so in which latter
case considerations somewhat different
from those that apply to a case where the
defendant
is
yet
to
commence
his
enterprise, are attracted."

27. The other decision relied upon by
the plaintiff on this point is Fateh Singh
Mehta (supra), which is not of much
relevance on the issue in hand, though it is
quite relevant on another point that would
soon be dealt with.

28. Now, the question whether a
prima
facie
case
is
made
out,
is
intrinsically connected to the cause of
action regarding infringement of the
copyright alleged. It is true that in order to
establish a prima facie case, in an action for
infringement of copyright, there have to be
pleadings to establish that the literary work,
of which the plaintiff claims infringement
by the defendants should be shown to be
the plaintiff's original literary work, in the
sense that the work is at least original
rendition of a known theme with the
plaintiff producing it, employing his
knowledge, labour and skill. In addition, it
has also to be established that the defendant
had access to the plaintiff's work, and that
the offending script is substantially similar
to the plaintiff's script. Here, there is no
doubt about one fact that the plaintiff holds
a copyrighted work. But beyond that, the
pleadings are utterly vague. There is an
assertion to the effect that the plaintiff
discussed the copyrighted work with
Mazhar Kamran, but it does not say that he
showed the copyrighted work to Kamran or
handed it over to him. Therefore, there is a
very vague case pleaded about the
intermediary who could have possibly
palmed off the copyrighted work to the
defendants, on coming to know of its
contents. A mere discussion of a work
involving
intellectual
intricacies
with
another is not a case enough to impute that
other with knowledge of its contents; and
knowledge good enough to share it with a
third party. The pleadings, therefore, are
woefully vague about the access of the
defendants to the copyrighted work.

29. The next assertion in the plaint
that the plaintiff was given information
about defendant no. 1 producing the feature
film, that is essentially similar to the
copyrighted work, is also utterly vague. It
is set out in Paragraph no.5 of the plaint.
The plaintiff does not name the source
through which he came to know that the
feature film is based on a script that is a
plagiarized version of the copyrighted
work. The terms employed in the relevant
pleadings are "reliable source/sources from
the film industry" which can hardly go to
make for a prima facie case or a triable
case for the grant of a temporary injunction
in an action for infringement of copyright.

30. There is another issue which is
required to be addressed. It is connected to
the fundamental issue about whether the
plaintiff at all had a cause of action to
proceed for infringement with the kind of
allegations that find place in the plaint.
Prima facie, the plaintiff never had
occasion to see what the contents of the
388 INDIAN LAW REPORTS ALLAHABAD SERIES
script leading to the feature film were, the
movie having not been released as yet and
certainly not until time the suit was filed.
The plaintiff has inferred that it is a copy of
his work on the basis of some hearsay, that
he has expressed through vague allegations
in the plaint, describing them as reliable
sources from the film industry. The entire
action is, therefore, based on the plaintiff's
conjecture. This cannot be the basis of an
action for infringement of copyright.

31. In this connection, reference may
be made to the decision of the Bombay
High
Court
in
Zee
Entertainment
Enterprises
(supra).
The
aforesaid
principle is well-established that unless
there is the infringing copy in the hands of
the plaintiff, an action in the nature of quia
timet would not lie, and even if it does, a
temporary injunction on the basis of mere
speculation would not be granted. In Zee
Entertainment Enterprises, it was held:

"20. Mr. Kadam then relies on the
decision of a learned Single Judge of this
Court (A.M. Khanwilkar, J as he then was)
in
Urmi
Juvekar
Chiang
v.Global
Broadcast News Ltd to say that what is
required is not a hypercritical or meticulous
scrutiny but an assessment from the
perspective of the average viewer. I
understand this to mean that having seen
Sony's show, would the average viewer
believe that this is in fact a copy of Zee's
show. We cannot today adopt that standard,
and this of Zee's making, because it chose
to make this as a quia timet application.
This is not without consequences. Sony's
show is scheduled to release only on 8th
April 2016. Nobody has seen it yet. What
Zee
proceeds
on
is
something
of
speculation or conjecture. Effectively Zee
asks me to conclude that Sony's show
releasing this Saturday, 8th April 2016
must necessarily be an infringing copy of
the Zee's show; and this I am supposed to
conclude or am invited to conclude on the
basis of paragraphs 8, 9 and 10 of the
plaint; although, as we have seen, in those
paragraphs
the
distinct
elements
(in
paragraph 10) have been disclaimed, and
the other paragraphs only contain nonspecific
generalities
without
any
explanation as to the original labour or
effort put in by Zee. During the rejoinder, I
did ask Mr. Khandekar to consider whether
he would prefer to wait till after the show is
released on Saturday, on my closing the
hearings today, so that the Plaintiffs would
have had the opportunity to see the show's
first episodes. Mr. Khandekar did take
instructions and these were to proceed with
the matter today rather than wait for the
release. That is certainly something the
Plaintiffs are entitled to do and it cannot
prejudice the final results. But inevitably
what it does mean is that Zee's case is then
limited to a matter of speculation without
even meeting a minimal standard of proof.
This creates enough difficulties in the
context of the claim in infringement but it
creates even more difficulties in the context
of the claim in passing off and to which I
will next turn."

32. On general principles governing
an action that is in the nature of quia timet,
it has since long been held that for an
injunction to be granted on a threat of
injury, the evidence about threat should be
through some tangible evidence laid before
the Court. An injunction of this kind cannot
be sought by a plaintiff on bald assertions
based on hypothetical facts. Burden of
proof in a quia timet action is also much
heavier than in a case where the defendant
has acted and wronged the plaintiff to his
detriment. The principle is classically
stated in the decision of the Court of
9 All. Uday Prakash Vs. Anand Pandit & Anr.
389
Appeal in Graigola Merthyr Company
Limited (supra), where Lord Hanworth
M.R. said thus:

"A quia timet action is not based
upon hypothetical facts for the decision of
an abstract question. When the Court has
before it evidence sufficient to establish
that an injury will be done if there is no
intervention by the Court-it will act at once,
and protect the rights of the party who is in
fear, and thus supply the need of what has
been terms protective justice. It is a very
old principle."

33. In Graigola Merthyr Company
Limited in his separate but concurring
opinion, it was held by Lawrence L.J.:

"........
The
only
difference
between the two cases is that in a purely
quia timet action the burden of proof
resting on the plaintiff is far heavier than in
an action where an act has already been
done and has already caused actual
damage. In both cases, however, the issue
is
the
same-namely,
where
the
act
(completed or intended) is an act causing
substantial damage to the plaintiff......."

34. Here, the submission of the
learned Counsel for the plaintiff that the
defendants' plea that the suit is a quia
timet
action
based
on
a
mere
apprehension, is now no longer open, nor
was it ever open, must be dealt with.
Learned Counsel for the plaintiff has also
said that it is no longer a mere
apprehension and is something that ought
to be viewed in the plaintiff's favour.
Learned Counsel for the plaintiff, in
urging this part of his submission, has
drawn inspiration from the decision of the
Madras High Court in P.G. Narayanan
(supra), where it has been held:

"26. Learned counsel for the
petitioner also submitted that the petitioner
is entitled to invoke the jurisdiction of this
Court for a quia timet action. Quia timet is
an extraordinary relief granted by Courts to
prevent irreparable harm. It gives relief to
parties who face imminent threat or danger
of a tortious harm for which there is no
adequate legal relief available later.