B.N. Chaturvedi, J.@mdashInstant appeal arises out of an order dated 3.8.2006 of learned Additional District Judge, whereby she, while disposing of an application under Order XXXIX Rules 1 & 2 CPC and another application under Order XXXIX Rule 4 CPC, made by appellant and respondent No. 1 respectively, vacated the ex parte ad interim injunction granted earlier in favor of the appellant.
2. Material facts as set out in the plaint unfold that the appellant acquired copyright, for consideration, in literary, dramatic, musical works and sound recording of several cinematograph films, including films �AKSAR� and �KUCCH TO HAI�, under separate deeds of assignment. The appellant also produced a sound recording under the title �MAIYA RANI�(MATA KI BHENT). By virtue of being assignee of the sound recordings comprising the songs(musical/literary works) of the films �AKSAR� and �KUCCH TO HAI�, and also being producer of sound recording under the title �MAIYYA RANI�(MATA KI BHENT) the appellant claims copyright ownership in the said sound recordings as well as in the musical/literary works embodied therein. The copyright, particularly in musical works in the sound recordings, is stated to be valid and subsisting in favor of the appellant and, thus, they are pleaded to have exclusive rights, inter alia, to re-produce the said musical/literary works in any form and to make sound recordings embodying the same.
3. The respondent No. 1, which is engaged in the business of production, manufacture and sale of sound recordings, etc. is alleged to have infringed the appellant''s said copyright by making, producing and marketing the sound recordings containing, inter alia, the musical works of the appellant-company without a valid license, consent, permission or assignment. The appellant has come across a video compact disc(VCD) under the title �KAILASH KE RAJA EK BAAR AAJA�AAJA�, picturised by the respondent No. 1, infringing appellant''s copyright in the musical works/tunes/tracks from the films �AKSAR�(JHALAK JA) and �KUCCH TO HAI�(DIL DING DONG) and sound recording under the title �MAIYYA RANI�(MAIN PARDESHI HOON). It is complained that the respondent No. 1 by re-producing and distributing the musical works of the appellant is violating its copyright and thereby causing tremendous loss to it.
4. To form a prima facie view on alleged infringement of appellant''s copyright, particularly in musical works, as complained of, the learned Additional District Judge, at the time of hearing on grant of ex parte ad interim injunction, allowed playing of musical tune of the title song �KAILASH KE RAJA EK BAAR AAJA�AAJA� from the audio cassette of respondent No. 1 and cassette of the film song �JHALAK DIKHLA JA� from film �AKSAR� and to justify grant of ex parte ad interim injunction, she proceeded to observe thus:
...on hearing the two cassettes, I came to the conclusion that on hearing the sound recording of the defendant No. 1 of the title song No. 1, it appeared as if one was hearing the music of the film song of the plaintiff `Jhalak Dikhla Ja'' of the film `Aksar'', i.e., despite the lyrics being different in that of the plaintiff song and that of the defendant, the musical tune of both the questioned songs of the defendant and of the plaintiff appeared to be the same. It appeared as if the composition of bhajan of defendant was being sung on the same musical tune as that of the plaintiff''s film Aksar on the song `Jhalak Dikhla Ja''.
5. The learned Additional District Judge continued to hold the same prima facie view on infringement count even after the respondent No. 1 had filed their written statement/reply and had the opportunity of making their oral submissions. Noting observations in para 46 of the decision in
In the present case, on hearing the questioned song of the defendant i.e. Song No. 1 side A titled `Kailash Ke Raja Ek Baar Aaja...Aaja'', one is left with the impression as if one is hearing the said bhajan on the musical tune of the song in question of the plaintiff namely `Jhalak Dikhla Ja'' of the film Aksar.
Undoubtedly, in the beginning of the musical work there are variations in the arrangements and the tune of the defendant and the plaintiff. Thereafter when the song begins the tune accompanying both the songs appears to be the same.
6. The learned Additional District Judge in spite of finding a prima facie case in favor of the appellant, keeping in view an affidavit of one Shri Yogesh Godia, who claims to be the composer of musical work in the sound recording of the song �KAILASH KE RAJA EK BAAR AAJA�AAJA� as his original work felt that since the question if there was substantial variation in the two songs, as stated in the affidavit of Shri Godia could be decided only after expert witnesses have been examined on either side, balance of convenience lay in favor of respondent No. 1. She noticed that in the event of respondent No. 1 being stopped from manufacturing and selling its sound recordings till the trial is over, its entire stocks may go waste and accordingly directed the release of the infringing VCDs/cassettes to respondent No. 1 with a direction that the respondent No. 1 would, pending disposal of suit, maintain accounts of manufacturing and marketing of all the questioned sound recordings and in the event of appellant-company succeeding, the sale proceeds of all such sound recordings, in the form of cassettes or VCDs, shall go to the appellant.
7. The learned senior counsel, appearing for the appellant, argued that the learned Additional District Judge having recorded her satisfaction with respect to existence of a prima facie case in favor of appellant-company, could not proceed to decline the discretionary relief in the nature of temporary injunction, as prayed for, simply in view of an affidavit of a person claiming himself to be the composer of the infringing musical work even when his name nowhere finds mention as composer on the VCD which the learned senior counsel produced in the course of making his oral submissions. He pointed out that there is no mention of the name of music composer on the VCD in question and it rather carries the name of one Ashok Babbu and that too as `music arranger''. In support of his arguments, he referred to two decisions of the Supreme Court in
46.3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
8. On the strength of decision in Midhas Hygiene Industries P.Ltd.(supra), he argued that in the matter of infringement either of trademark or of copyright, normally, an injunction must follow and that the grant of injunction also becomes necessary if the adoption itself of the mark prima facie appears to be dishonest.
9. The learned Counsel for respondent No. 1, on the other hand, sought to place reliance on two decisions of the Supreme Court in �Wander Limited and Anr. v. Antox India (P) Limited� 1991 PTC 1 ,
10. Notably, the prima facie view which the learned trial court was able to form after hearing the musical tunes of the film song No. 1 �KAILASH KE RAJA EK BAAR AAJA�AAJA� in the cassette of respondent No. 1 and that of film song �JHALAK DIKHLA JA� in appellant''s cassette of film �AKSAR�, did not get materially dislodged even after taking into account the defense set up by the respondent No. 1 in its WS/reply as is evident from reiteration of the same very view which the learned Additional District Judge formed at the time of grant of ex parte ad interim injunction in favor of the appellant. The learned trial court, however, misdirected its course in adjudging the entitlement of appellant to a continued ad interim protection, pending disposal of the suit on account of an affidavit from one who claimed himself to be the original composer of the offending title song. Before according any weightage to the affidavit of a person claiming to be original composer of the questioned musical tune a prima facie view of his credentials in that capacity was required to be noticed. Evidently, the offending VCD does not carry the name of music composer of the songs contained therein, including the title song No. 1 �KAILASH KE RAJA EK BAAR AAJA�AAJA�. It rather carries the name of a different person and that too as `Music Arranger''. Thus, the claim by Shri Yogesh Godia in his affidavit that he was composer of the musical work in the sound recording of �KAILASH KE RAJA EK BAAR AAJA�AAJA� and that the musical work in the said song was materially and substantially different from the sound recording of the appellant could not be taken to have tilted the balance of convenience in favor of respondent No. 1, as stated by learned trial court in the impugned order. At the hearing, learned senior counsel, appearing for the appellant, to support his plea that it was a clear case of piracy of appellant''s musical work, played in the court an audio cassette of respondent No. 1 containing the title song �KAILASH KE RAJA EK BAAR AAJA�AAJA� and also the appellant''s cassette of film song �JHALAK DIKHLA JA� from film �AKSAR� and on hearing musical tune in the two songs, it appeared that the musical tune was substantially identical. The learned trial court would, thus, appear to have had rightly found a prima facie case of infringement of appellant''s copyright. The learned Additional District Judge, however, erred in finding that the balance of convenience lay in favor of respondent No. 1 simply because, in order to find if the musical work in the offending songs was materially and substantially different, as claimed by said Shri Yogesh Godia in his affidavit, expert evidence was required. The application for temporary injunction was to be decided on a prima facie view of the matter and ad interim ex parte protection granted to the appellant earlier could not justifiably be withdrawn by vacating the same merely because for grant of relief of permanent injunction in the suit, the appellant, in the face of defense set up by the respondent was required to establish its right on the strength of evidence at the trial. The reason recorded by the learned trial court to find balance of convenience in favor of the respondent does not appear to commend to judicial reasoning as in that situation balance of convenience would always lay in favor of defending party since in every action a `prima facie case'' is always subject to a trial before the relief sought in the suit is eventually granted.
11. Undoubtedly, to qualify for grant of an interlocutory injunction, a case must pass the test on three counts, namely, 1) existence of a prima facie case in favor of the person seeking the relief, 2) balance of convenience being in his favor; and 3) non-grant of discretionary relief is likely to result in irreparable loss to such person. Legal position on this score has all along been consistent and needs no case law to be cited in support.
12. To find which way balance of convenience lies, it is the substantial mischief or injury likely to be caused to the party seeking the relief in case of refusal to exercise the discretion which needs to be comparatively assessed with one that may be occasioned to the opposite side if the same is granted. The learned trial court would appear to have applied an unacceptable yardstick alien to the cause to hold balance of convenience in favor of the respondent. Noticeably, out of eleven songs in the cassette of the respondent No. 1 infringement of copyright is alleged in respect of only two songs � songs No. 1 & 7. Even if injuncted the respondent No. 1 would still be free to manufacture and market their audio cassettes/CDs minus aforesaid two songs. On the other hand, in the absence of a restraint, as rightly argued by the learned senior counsel for the appellant, since film songs have a limited lease of life, in the event of the respondent No. 1 being allowed to manufacture and market the sound recordings in question by the time trial comes to an end they would have already exploited the questioned musical work to their full advantage to the detriment of the appellant. A dishonest act can under no circumstance be held to supply justification to find balance of convenience in favor of a person being charged with piracy. It is, in the light of above, difficult to subscribe to the view taken by the learned Additional District Judge that the balance of convenience lies in favor of respondent No. 1.
13. Against irreparable loss alleged by the appellant in the event of injunction being not granted, learned Counsel for the respondent No. 1 argued that in terms of their own pleadings the appellant has claimed damages only to the tune of Rs. 10 lacs and the learned trial court has, by directing accounts of manufacture and sale being maintained during the pendency of the suit, adequately protected the financial interest of the appellant and in that view of the matter refusal to grant interlocutory injunction is not likely to result into irreparable injury to the appellant.
14. In Dalpat Kumar(supra), which was incidentally relied upon by learned Counsel for the respondent No. 1, there is a clear exposition of what constitutes an irreparable injury. It says:
�Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages�.
15. While claiming damages the appellant had obviously to specify some amount on that account in the suit which they did. The fact that such claim is qualified by `minimum'' implies that even the appellant is at this juncture not certain about the extent of financial loss which they are likely to suffer on account of marketing of the musical work in their two songs as also injury to their goodwill and reputation. A direction for accounts of manufacture and sale of the sound recordings in question by the respondent No. 1 may apparently appear to address the grievance of the appellant as far as ascertainment of extent of damages suffered by it, at the hands of the respondent in the event of its emerging successful in the ultimate analysis, is concerned. However, maintenance of a true and faithful account on this count on the part of the respondent No. 1 during the pendency of the suit would be a difficult task to enforce. Where on a prima facie view of the matter, conduct of a party is rendered questionable, extent of injury to the person complaining of being wronged, cannot be measured on the basis of accounts maintained by it. Moreover, it is not only the sale proceeds which the respondent No. 1 would be able to collect by marketing the pirated work, a resultant drop in market demand of the appellant''s musical work and loss occasioned on that score would also have to be kept in view in assessing the extent of damages likely to be caused. It would, thus, appear that a mere mention of a minimum amount of damages may not really be index of actual loss which may possibly occur to the appellant.
16. Arguably though the loss likely to be caused to the appellant, in the absence of a restraint order in their favor, may not be of a very high magnitude, irreparable loss consideration apart, the relief of temporary injunction being wholly equitable in nature, apart from other considerations, the respondent No. 1, who sought vacation of ex parte ad interim injunction, had to show that they have not been unfair or inequitable to the appellant and that their conduct is fair and honest.{see
17. As a result, the appeal is allowed and the impugned order is set aside. Allowing the appellant''s application under Order XXXIX Rules 1 & 2 CPC, ad interim injunction granted by the learned trial court is made absolute, pending disposal of the suit. No costs.
