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Mohd. Latif Choudhry Vs. Smt. Amritkala Baveja and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 474 and 481 of 1957
Judge
Reported inAIR1959MP309
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 2 - Order 40, Rule 1; Contract Act, 1872 - Sections 172 and 182; Specific Relief Act, 1877 - Sections 57
AppellantMohd. Latif Choudhry
RespondentSmt. Amritkala Baveja and anr.
Appellant AdvocateM.B. Rege and ;S.D. Sanghi, Advs.
Respondent AdvocateK.A. Chitale and ;J.D. Patel, Advs. for Opponent No. 1
DispositionRevisions allowed
Cases ReferredIn Mathulla Ittan Pillai v. Ouseph Mannanda
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - azad films distributors had failed to pay the amount, that she was therefore entitled to.....orderp.v. dixit, j.1. these two petitions are directed against art order of interim injunction made in appeal by the second additional district judge of indore in an action brought by amritkala against the two petitioners, for a prohibitory injunction restraining mohammad latif choudhary from distributing the film 'jivan-sathi' anywhere in central india territory inclusive of bhopal and vindya pradesh and for a mandatory injunction directing m/s d. s. films to deliver the prints of the said film to amritkala, by the order sought to be revised, the second additional district judge of indore has restrained mohammad latif choudhary from distributing the film 'jivan sathi' to any other person in the central india territory and from exhibiting it himself or through any person in the said.....
Judgment:
ORDER

P.V. Dixit, J.

1. These two petitions are directed against art order of interim injunction made in appeal by the second Additional District Judge of Indore in an action brought by Amritkala against the two petitioners, for a prohibitory injunction restraining Mohammad Latif Choudhary from distributing the film 'Jivan-Sathi' anywhere in Central India territory inclusive of Bhopal and Vindya Pradesh and for a mandatory injunction directing M/S D. S. Films to deliver the prints of the said film to Amritkala, By the order sought to be revised, the second Additional District Judge of Indore has restrained Mohammad Latif Choudhary from distributing the film 'Jivan Sathi' to any other person in the Central India territory and from exhibiting it himself or through any person in the said territory, and the applicant M/S D. S. Films from handing over the prints of the film to Mohd. Latif Choudhary or to anyone else except through the plaintiff.

2. The undisputed material facts are that on 19-11-1956 an agreement was concluded between M/S D. S. Films of Bombay and Mohammad Latif Choudhary as owner of M/S Azad Film Distributors, Indore, whereby the right of distribution, exhibition and exploitation of the picture 'Jivan-Sathi' in the territory of Central India and Rajasthan was given on certain terms and conditions exclusively to M/S Azad Film Distributors who were described in the agreement as 'agents' of the producers M/S D. S, Films.

Thereafter M/S Azad Film Distributors appointed M/S Krishna Film Exchange of Jaipur as sub-distributors for distribution, exhibition and exploitation of the said picture in the territory of Rajasthaa State. Subsequently, Mohammad Latif Choudhary borrowed from the plaintiff Amritkala some amounts from time to time to pay the amount that he was required to remit to M/S D. S. Films under the agreement Out of this amount, a sum of Rs. 3151/-remained due from Mohammad Latif Choudhary to Amritkala. In repayment of this amount, Mohammad Latif Choudbary issued in favour of Amritkala a post-dated cheque for Rs. 3151/-. The cheque was given on 4-4-1957 and was due for payment on 25-4-1957. At the time of the giving of the cheque, Mohammad Latif Choudhary, as proprietor of M/S Azad Film Distributors, addressed a letter to the plaintiff Amritkala wherein he stated:

'I Mohd. Latif Choudhary son of Mehruddin Choudhary Proprietor Azad Film Distributors, Film Colony. Indore, hereby solemnly pledge the original agreement o Jevan Sathi picture executed and signed between us and the recognised producers of the said picture Jeevan Sathi i.e. M/S D S. Films, Bombay, against an amount of Rs. 3151/- (Three Thousand One Hundred Fifty One only) which I had taken a loan for securing the rights of this picture and in repayment of the same amount I have issued you a cheque of Rs. 3151/- on the Bank of Indore Limited, Sanyogitagnj, Indore, dated 25-4-57. I solemnly declare that in case the cheque is not encashed on the due date you will have the full legal ownership on the right of the picture for C. I. Territory.'

The said cheque was presented by Amritkala for payment on the due date but it was dishonoured. Thereupon on 15-5-1957 Amritkala addressed a letter to M/S D. S. Films, Bombay, saying that M/S Azad Films Distributors, Indore, had entered into a finan-cial agreement with her on 4-4-1957 under which she had advanced a sum of Rs. 3151/- to M/S Azad Films Distributors on the stipulation that if the amount was not repaid by 25-4-1957 all rights of distribution, exhibition and exploitation of the picture, Jivan Sathi would vest in her. She proceeded to say in the letter that M/s. Azad Films Distributors had failed to pay the amount, that she was therefore entitled to all the rights of distribution, exhibition and exploitation of the picture, and that M/s. D. S. Films should hand over to her all the prints and publicity material of the film.

In reply to this letter, M/S D. S. Films wrote to the plaintiff on 28-5-1957 saying that as they had not entered into any contract with the plaintiff, she had no right to address the letter which she did on 15-5-1957; that they had nothing to do with the dispute between her and Mohammad Latif Choudhary as regards the advance and repayment of Rs. 3151/-; that they were merely interested in the distribution, exhibition and exploitation of the picture in the Central India territory; that if the plaintiff was in possession of the original contract and other documents regarding the distribution rights of the picture, it did not make any difference to them; and that it was for the plaintiff to come over to Bombay with all the relevant papers and money For prints and publicity materials.

On the further averment that after the receipt of this reply she enquired of M/S D. S. Films several times as to the date when she could come over to Bombay to take the film and the publicity material but that they never replied, that she had now learnt that the publicity material had been handed over by M/S D. S. Films to Mohd. Latif Choudhary, and that the picture Jivan-Sathi was now ready and about to be delivered to Mohd. Latif, the plaintiff instituted the suit claiming the relief of injunction mentioned earlier.

3. The suit was instituted on 14-6-1957. On the same day, an application for ad interim injunction was made. The trial Judge first made an ex parte order of injunction but later on vacated it after hearing all the parties. He found it difficult to express any opinion at that stage whether the plaintiff had a prima facie case. According to him, the case did not involve performance of any negative agree-ment as what the plaintiff was seeking was to enforce an affirmative agreement, that the balance of con-venience lay in refusing the order of injunction prayed for by the plaintiff, and that she was not likely to sustain any irreparable injury if the injunction were withheld.

The plaintiff then appealed to the Court of the District Judfe of Indore. The Second Additional District Judge of Indore, who heard the appeal, took the view that on the dishonourment of the cheque issued by Mohd. Latif Choudhary and on his failure to pay Rs. 3151/- on the due date to the plaintiff, she prima facie became the full owner of the distribution and exhibition rights in the film Jivan Sathi for the Central India territory; that under the agreement concluded between M/S Azad Film Distributors and M/S D. S. Film of Bombay the possession of M/S Azad Film Distributors was not that of an agent but of 'an owner of distributing rights'; that, therefore, Mohd. Latif Choudhary as owner of M/S Azad Film Distributors could transfer the rights to the plaintiff without the consent of M/S D. S. Films and even if the contract between M/S D. S. Films and M/S Azad Film Distributors, whether treated as a contract of agency or otherwise, required the consent of the producers M/S D. S. Films for assignment, the consent was implicit in the terms of the contract; and that the material on record indicated an implied consent of the producers to the assignment of the contract in favour of the plaintiff.

Accordingly, the learned appellate Judge held that the plaintiff had a prima facie case to go to trial; and that as the contract between the two defendants and the assignment of it in favour of the plaintiff involved two negative covenants, namely, that the defendant M/S Azad Film Distributors shall not distribute the film for exhibition in Central India territory and that M/S D. S. Films shall not appoint any other party or parties or persons except the plaintiff for distribution, exhibition or exploitation of the picture within the Central India territory, no question of any balance of convenience or inconvenience or of damage or injury would arise. He also found that the plaintiff would in fact suffer irreparable injury if the defendants were not restrained from distributing the picture through anyone else except the plaintiff in Central India territory. On these findings, the learned Second Additional District Judge made the order under revision.

4. Mr. Sanghi, learned counsel for the petitioner Mohd. Latif Choudhary, argued that Mohd. Latif Choudhary borrowed Rs. 3151/- from the plaintiff on the pledge of the agreement between him and M/S D. S. Films and that the condition that in the event of the cheque passed in favour of the plaintiff not being cashed on the due date she would have 'the full legal ownership on the rights of the picture for Central India territory' was invalid as it operated as a clog on that right of the pledger under Section 177 of the Contract Act to redeem the goods pledged at any time before the actual sale of the pledged goods; that, therefore, the plaintiff could not claim that on the failure of Mohd. Latif Choudhary to repay the amount she had become the owner of the distribution rights; that as under the agreement between M/S Azad Film Distributors and M/S D. S, Films the distributors M/S Azad Film Distributors were merely agents of the producers M/S D. S. Films; and that these agency rights could not be transferred by the agent M/S Azad Film Distributors.

Learned counsel proceeded to say that the contract between the two defendants could not be assigned to the plaintiff as an actionable claim as the contract in question was an executory contract induced by personal qualifications and considerations as to M/S Azad Film Distributors and was coupled with Certain burdens which M/S Azad Film Distributors were found to discharge.

It was also said that the contract could not be assigned also for the reason that it was indivisible and M/S Azad Film Distributors had already appointed M/S Krishna Film Exchange of Jaipur as sub-agents for the Rajasthan territory. On behalf of the petitioner M/S D. S. Films, Shri Sound Studios, Bombay, Mr. Rege urged that there could not be any pledge of the film by M/S Azad Film Distributors when the reels of the said picture were with the producers and not with the aforesaid distributors; that the contract concluded between the two defendants was a contract of agency and could not be validly assigned; that it also involved special personal qualifications and technical skill on the part of the party appointed as distributing agent and could not, therefore, be assigned without the consent of the petitioner; and that M/'s. D. S. Films had never consented to the assignment and there was no covenant which could be enforced against any of the defendants.

5. In reply, Mr. Chitale, learned counsel appearing for the plaintiff, contended that the condition of the plaintiff getting 'the full ownership on the right of the picture for the Central India territory' in the event of the cheque issued by Mohd. Latif Choudhary for Rs. 3151/- being dishonoured was not invalid; that if there was no pledge, there could be assignment of the rights under the contract between the producers and the distributors; that the relations between the producers and the distributors were not of principal and agent, but of principal and principal; and that on a fair reading of the agreement dated 19-11-1956 it could not be held that there was any agency between the producers and the distributors.

Learned counsel maintained that the relationship between M/S Azad Film Distributors and M/S D. S. Films was that of a 'distributor' and 'producer' & akin to one of those mentioned in Hope Prudhom-me and Company v. Hamel and Horley Ltd., AIR 1925 PC 161. It was further argued that the contract was assignable and the producers had at no time objected to the assignment or revoked the contract dated 19-11-1956 because of the assignment and that, on the other hand, they asked the plaintiff to come over to Bombay with necessary papers and money for taking delivery of the prints.

Learned counsel proceeded to say that the restrictive injunctions issued by the lower appellate Court could be made under Section 57 of the Specific Relief Act. Even if there was no case for the issue of a prohibitory injunction, it was competent for the Court to appoint a receiver in those proceedings and that the appointment of a receiver would be just and convenient in the case for safeguarding the rights of the plaintiff,

6. To my mind, it cannot be argued with any degree of force that the plaintiff has no prima facie case to go to trial. The defendant M/S Azad Film Distributors have admitted in their written statement that an amount of Rs. 3151/- was due from them to the plaintiff, that Mohd. Latif Choudhary, as proprietor of the distributing firm, gave a post-dated cheque to the plaintiff on 4-4-1957, which was due for payment on 25-4-1957, and that the cheque was dishonoured when it was presented for payment on the due date and thereafter.

It is also admitted by this defendant that on 4-4-1957 he addressed a letter to Amritkala saying that he had 'pledged' the original agreement as security for the repayment of the amount of Rs. 3151/-and that the letter contains the term that 'in case the cheque is not encashed on the due date she would have the full Jpgal ownership on the right of the picture for the Central India territory'. It is also not denied that the amount of Rs. 3151/- was never paid to the plaintiff and was not even tendered for payment before the institution of the suit.

That being so, it cannot be held that the plaintiff's case that on the dishonourment of the cheque issued to her by Mohd. Latif Choudhary she became the owner of the distributing rights of the film is prima facie untenable. There is no question of any pledge here and consequently of the condition as to the plaintiff becoming the owner of the distributing rights on Mohd. Latif Choudhary's failure to repay the amount operating as a clog on redemption of the pledge. Delivery of goods is necessary to complete a pledge and here admittedly there was neither actual nor constructive delivery of the reels or prints of the film which were in the possession of the producers.

By the letter dated 4-4-1957 Mohd. Latif Choudhary merely assigned the rights of distributing the film for exhibition in Central India territory which he had obtained from the producers under the agreement dated 19-11-1956. The learned Additional District Judge thought that originally the relationship between M/S Azad Film Distributors and the plaintiff was that of a pledger and pledgee but that afterwards when there was a default in the payment of the debt the plaintiff prima facie became the owner of the distributing rights.

He placed reliance on Dwarika v. Bagawati, AIR 1939 Rang 413, where it was held that an agreement that the pledge would become irredeemable if not redeemed after a certain period was valid. As I have said before, there was manifestly no pledge here. Mr. Sanghi, learned counsel for the petitioner Mohd. Latif Choudhary, though at first inclined to argue that the letter dated 4-4-1957 created a pledge, did not ultimately dispute that there could be no pledge when the prints and reels of the film were with the producer and not delivered by the distributor Mohd. Latif Choudhary either actually or constructively to the plaintiff. In this view of the matter, it is not necessary for me to consider the correctness of the decision of the Rangoon High Court which Has been doubted in Mulla's Contract Act (page 604 8th edition).

7. The main contention of the petitioners is that the true relationship created by the agreement of 19-11-1956 concluded between them was that of principal and agent and that, therefore, there could be no assignment of any rights in favour of the plaintiff. In support of this contention, learned counsel for the petitioners have strongly relied on the terms in the agreement appointing the distributors M/S Azad Film Distributors 'as the exclusive agents for the distribution, exhibition and exploitation of the said picture' and describing them as agents and the arrangements embodied in the agreement as 'agency arrangements.'

It is no doubt true that the agreement purports to appoint M/S Azad Film Distributors as exclusive agents, describes them as 'agents' and speaks of the terms of agreement as 'agency arrangements' and of remuneration payable by the producers M/S D. S. Films to the distributor M/S Azad Film Distributors as 'commission'. But the true relationship created by the agreement cannot be determined merely on the description given therein of the distributors or of the remuneration payable to them by the producer.

That can be only determined by a consideration of all the terms and conditions of the agreement and if on such a consideration it is found that the person described as agent is to act on his own behalf and not on behalf of the other party to the agreement, then notwithstanding the description of the person as agent it must be held that the relation between the parties is as between principal and principal.

8. Now Section 182 of the Contract Act gives the definition of 'Agent* as 'a person employed to do any act for another or to represent another in dealings with third persons'. In the agreement dated 19-11-1956, the element of representation is totally absent. By Clause (1) of the agreement the distributors are appointed as the exclusive agents for the distribution, exhibition and exploitation of the picture. Clause (2) fixes the period of 'agency arrangements'.

By the third clause, the producers undertook not to appoint any other party or parties or persons for distribution, exhibition or exploitation of the picture for the Central India territory without the written consent of the distributors. Clauses (4) and (6) deal with the amount which the distributors have to pay to the producers by way of minimum guarantee and the amount payable by the producers to the distributors. The other clauses are concerned with the supply of publicity material, tailors, prints, the contingency of the producers' failing to give the picture or the material, removal of the imposition of any ban on the exhibition of the picture, and the maintenance of accounts by the distributors.

There is no clause in the agreement showing that the contracts entered into by the distributors with the exhibitors of the film shall be negotiated and concluded by the distributors in the name of the pro-ducers and executed on their behalf. The terms of the agreement do not also show that the distributors were persons 'employed to do any act for another' within the meaning of the first part of Section 182 of the Contract Act. The agreement does not even impose any duty on the distributors of securing the longest possible run of the film or the widest possible exhibition of it.

There is no clause in the agreement to indicate that the renting of the film to the exhibitors by the distributors shall be not on behalf of the distributors but on behalf of the producers. Under the agreement, M/S Azad' Film Distributors were required to pay a sum of Rs. 50,000/- as and by way of minimum guarantee in the manner specified in Clause (4) of the agreement. Clause (6) says that the producers shall pay to the distributors 'a commission at the rate of twenty per cent only up to the total realisations of the amount of Rs. 50,000/- only and the said commission shall be thereafter at the rate of fifty per cent till the continuance of the agency'.

It will be seen that under the agreement the producers get their minimum Rs. 50,000/- in any case even if the distributors do not realise any amount by exhibition of the film. The use of the word 'commission', therefore, in Clause (6) of the agreement does not carry the meaning of remuneration paid to an agent for the work done by him. In this connection, it would be pertinent to refer to Balthazar & Son v. E. M. Abowath, AIR 1919 PC 166. In that case, the question arose whether the use of the word 'commission' in a selling agreement imported the relationship of principal and agent. Lord Dunedin observed that if the terms of the agreement establish the relationship of vendor and purchaser, the use of the word 'commission' did not convert it into an agency. He said:

'It comes to this that all the documents show on the face of them a contract as between principals. The mere mention of commission in the contract as signed is not in any way ..... inconsistent with the relation being between principal and principal.'

Considerable stress was laid by Mr. Sanghi, learned counsel for the petitioner Mohd. Latif Choudhry, on Clause (10) of the agreement dealing with the maintenance of accounts by the distributors. It was said that the liability on the part of the distributors to render accounts to the producers showed that the relationship between them was that of principal and agent. Clause (10) no doubt requires the distributors to maintain proper accounts and to submit them to the producers every month. But this accounting is plainly for the purpose of informing the producer of the measure of the success and popularity of the film in the area for which M/S Azad Film Distributors were appointed as distributors and for calculating the remuneration payable to the distributors under Clause (6). Merely because the distributors are required to maintain accounts for certain purposes, it does not follow that they are agents of the producers.

The liability to account imposed on the distributors under Clause (10) Is not the liability of an agent to account to the principal for the moneys of the principal or for the transactions done on behalf of the principal or for dealings effected as representing the principal. In my view, the agreement concluded between the two defendants did not make M/S Azad Film Distributors, agents of the producers M/S D. S, Films. The producers were simply buyers of the sole right of distribution, exhibition and exploita- tion of the film in the territory of Central India and Rajasthan on certain terms.

Their position is analogous to the position or distributors appointed in many trades on terms of discount and commission for the sale of goods in certain specified regions. The decision of the Privy Council in AIR 1925 PC 161 explains the position of such distributors or dealers. It was observed in that case:

'Modern business has given extension to the terms 'agent' and 'agency'. In many trades particularly, for instance, in the motor-car trade the socall-ed agent is merely a favoured and favouring buyer, one who under an overriding contract undertakes to do his best to find a market for the manufacturer's, stock, who is given some special advantages, such as a special discount or preference in complying with his orders; but who in each particular contract acts as a buyer from the manufacturer and sells at whatever price he can get, unless as is sometimes the case he is by a special provision in the overriding contract forbidden to sell too cheaply or required not to spoil the market by asking too much.'

If then, as I think, and the conclusion is only tentative required for the purpose of deciding the issue of injunction. M/S Azad Film Distributors have not been constituted as agents of the producers, the argument that the agency agreement could not be assigned to the plaintiff must fall to the ground.

9. Coming now to the contention that the contract being an executory contract, one induced by personal qualifications and considerations as to M/S Azad Film Distributors coupled with certain burdens could not be assigned without the consent of the producers, I do not think that personal performance by Mohd. Latif Choudhary or M/S Azad Film Distributors was the essence of the contract. Mr. Sanghi, learned counsel for the petitioner Mohd. Latif Choudhry, was not able to point out the competence, judgment, taste or other personal qualifications of Mohd. Latif Choudhary which induced the producers to contract with him. Indeed, the very fact that Mohd. Latif Choudhary appointed M/s. Krishna Film Exchange as sub-distributors for the territory of Rajasthan is sufficient to show that the contract concluded between the producers and M/S Azad Film Distributors did not depend upon any personal qualifications. I think it is well-known that in cinema trade, the success or failure of a film depends on its own intrinsic merit and not on any skill on the part of the distributor in finding out suitable exhibitors of the film.

There is also no question of any assent of the producers to the contract entered into between Mohd. Latif Choudhary and the plaintiff so far as the liability of Mohd. Latif Choudhary himself on that contract is concerned. Leaving aside the question whether by the letter dated 4-4-1957 Mohd, Latif Choudhry assigned to the plaintiff only the benefit of the contract he had concluded with the producers, or whether he assigned both the benefit as well as the burden under that contract, the assignment, if otherwise valid, would be binding between himself and the plaintiff.

The question of the consent of the producers to the assignment would no doubt be material in considering the liability of the producers to the plain-tiff under the assignment. But the plaintiff has nowhere said in the plaint that this assignment established a privity of contract between her and the producers. She has no doubt averred that when she informed the producers of the contract entered into between her and Mohd. Latif Choudhary, they asked her to come to Bombay with all the necessary papers and the requisite money, and take delivery of the prints, but that later on they did not intimate to her the date on which she could come to Bombay.

The plaintiff has also sought the relief of a mandatory injunction against M/S D. S, Films enjoining them to deliver the prints of the film to her. But this statement or the prayer does not amount to a statement that there was a privity of contract between the plaintiff and the producers. The learned Additional District Judge held that the producers had given their assent in advance to the assignment inasmuch as the deed of agreement dated' 19-11-1956 defined the expression 'the distributors' as meaning and including assigns, and that the distributors had in fact impliedly consented to the assignment when they called the plaintiff to Bombay.

1 do not agree with this reasoning and conclusion of the learned Judge. The definition of the term 'distributors' as including assigns only shows that the assignment of the contract was not prohibited, and not that either party had given in advance its assent to any assignment by the other or that it could be assigned without the consent of any party, The fact that the plaintiff was asked to come to Bombay with all the papers only indicates that the producers were not averse to the assignment of the contract to the plaintiff.

The invitation cannot be regarded as an assent itself on the part of the producers to the assignment and its acceptance so as to result in the substitution of the plaintiff for M/s. Azad Film Distributors for the due performance of the contract concluded by the producers with M/S Azad Film Distributors. In this view of the matter, the learned Additional District Judge was not right in issuing a prohibitory injunction against the defendant M/S D. S. Films of I Bombay.

10. The interim injunction could not be made even against M/s. Azad Film Distributors, when the plaintiff had not shown the irreparable injury that would be caused to her if the injunction were denied. The learned Additional District Judge found support in Section 57 of the Specific Relief Act and a passage in Kerr on Injunctions in making the restrictive injunctions that he did even in the absence of any indica-tion of irreparable injury. Now Section 57 of the Specific Relief Act applies only to a permanent injunction that may be granted by way of the specific performance of a negative agreement and not to a temporary injunction.

This is clear enough from Section 53 of the Specific Relief Act which says that temporary injunctions are regulated by the Civil Procedure Code and from the fact that Section 57 of the Act is included in that chapter of the Specific Relief Act which deals with perpetual injunctions. The passage in Kerr on Injunctions relied on by the lower appellate Court at page 422 (sixth edition) of the book is as follows:

'If the parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of equity has to do is to say by way of injunction that the thing shall not be done. In such a case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience or of the amount of damage or injury'.

These observations have been made by the learned author in connection with the question ot the issue of permanent injunctions. The learned appellate Judge overlooked the observations in Kerr at pages 15 to 26 in regard to the issue of temporary injunctions. It has been stated at page 17:

'A man who seeks the aid of the Court by way of interlocutory injunction must, as a rule, be able to satisfy the Court that its interference is necessary to protect him from that species of injury which Court calls irreparable before the legal right can be established upon trial'.

The same opinion has been expressed in Woodroffe on 'Law Relating to Injunctions' (4th edition) at page 84 where the following passage occurs:

'Upon an application for an interlocutory Injunction, the Court will not, however, decide which of the parties is right in their statement of facts. Looking at all the facts of the case it will consider whether it is right that the applicant should suffer the alleged threatened injury whilst - his rights are being investigated. Of course, if he has no rights cadit quaestio. But if his statement of facts is true and raises a fair and substantial question to be decid-ed as to what the rights of the parties are, then the Court will issue the injunction, though in doing so it will not assume that he has tie right which he claims, nor that the defendant is justified in saying that that right does not exist'.

It must be noted that the sole relief claimed by the plaintiff in the suit is prohibitory injunctions against the defendants and a mandatory injunction against M/S D. S. Films of Bombay. In the suit, as it is framed, the granting of temporary injunction would virtually amount to decreeing it and likewise refusing to grant it would have the effect of dismissing it. In a case of this nature, the plaintiff must not only make out a prima facie case but also satisfy the Court that irreparable injury would be caused to him it the termporary injunction is refused.

It has been held in Rameshwar Lath v. Calcutta Wheat and Seeds Association, 40 Cal WN 1201 that in a case in which the granting of a temporary injunction would have the practical effect of granting the sole relief claimed in the suit, the temporary injunction should not be granted unless irreparable injury would be caused to the plaintiff. In the Calcutta case, reliance was placed on the observations of Lord Strendale M. R. in Dodd v. The Amalgamated Marine Workers' Union, (1924) 93 LJ Ch 63, namely:

'It may be right in certain cases to give all the relief claimed in the action upon interlocutory motion even though there has been no agreement betweea the parties to treat the motion as the trial of the action, but that is not the rule and it is not the usual practice nf the Court'.

It is thus clear that the plaintiff is not entitled to any temporary injunction without showing the irreparable injury that would be caused to him if the injunction is not granted.

11. The plaintiff has not been able to show the irreparable injury that would be caused to her if the injunction were refused. She can at the most say that under the contract between her and Mohd. Latif Choudhary she is entitled to receive remuneration that the producer would pay to the distributor M/s. Azad Film Distributors under the contract dated 19-11-1956 and that if she files a suit against M/s. Azad Film Distributors for damages and obtains a Decree she would not be able to realise the amount awarded by the decree from them.

I do not see any difficulty in determining the amount that may be found due to the plaintiff for the realisations from the exhibition of the film from the accounts that the distributors have to submit to the producers under the contract dated 19-11-1956. and those of the exhibitors themselves. On the other hand, considerable inconvenience and injury would be caused to all the parties if the distribution and exhibition of the picture in the Central India territory is restrained for a considerable time.

It is common knowledge that in cinema trade simultaneous release of any picture at several places is of considerable importance in order to secure that the success and popularity of a picture in any area is not marred or affected by the reception it has received or the reputation it has gained in any other area. There is thus a risk of the 'exhibition value' of the picture going down in the Central India territory by the reports about it in places where it has already been exhibited or is being exhibited. In my opinion, this is not a case where the lower Court should have made an interim injunction restraining the exhibition of the picture.

12. In regard to the suggestion of Mr. Chitale, learned counsel appearing for the plaintiff, that a receiver could be appointed in the case, there are no doubt decisions which hold that in an application for injunction the Court can appoint a receiver. In D. K. Raja v. P. S. Kumaraswami Raja, (S) AIR 1955 Mad 360 it has been stated that there can be no objection to the appointment of a receiver in an application for an injunction if the plaintiff wants it in the alternative, but the Court cannot appoint a receiver suo motu. In Mathulla Ittan Pillai v. Ouseph Mannanda, AIR 1952 Trav Co. 332, the view was taken that in proceedings for injunction the Court could suo motu appoint a receiver.

It is not necessary to consider whether a recei-ver can be appointed in these proceedings. For even assuming that it is open to the Court to appoint a receiver in injunction proceedings if it thinks fit, hero there is no property in the possession of the defendant M/S Azad Film Distributors to which the plaintiff can lay claim and of which a receiver can be appointed. The film prints are still with the producers. The proper time for moving the Court for the appointment of a receiver would be if and when the producers deliver the prints to M/S Azad Film Distributors and they begin distributing the prints for exhibition.

13. For the foregoing reasons, I am of opinion that this is not a fit case in which the lower appellate Court should have made the orders of injunction that it did. Both these petitions are therefore accepted and the injunction orders made by the learned Additional District Judge of Indore are vacated. The petitioner in each case shall have his costs from the plaintiff, here and in the Court below.


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