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Ushaben Navinchandra Trivedi and anr. Vs. Bhagyalaxmi Chitra Mandir and ors. - Court Judgment

LegalCrystal Citation
CourtGujarat High Court
Decided On
Case NumberA.F.O. No. 216 of 1975
Reported inAIR1978Guj13; (1977)GLR424
ActsCode of Civil Procedure (CPC), 1908 - Sections 9 - Order 39, Rule 2; Specific Relief Act - Sections 41; Constitution of India - Articles 13, 19, 25, 25(1) and 31
AppellantUshaben Navinchandra Trivedi and anr.
RespondentBhagyalaxmi Chitra Mandir and ors.
Appellant Advocate N.J. Modi, Adv.
Respondent Advocate G.N. Shah, Adv. and; G.N. Desai, Adv. for; K.U. Chinubha
Cases ReferredBourhill v. Young
civil - permanent injunction - section 9 and order 39 rule 2 of code of civil procedure, 1908, section 41 of specific relief act and articles 13, 19, 25, 25 (1) and 31 of constitution of india - appeal against refusal to grant temporary injunction restraining respondents from exhibiting cinematographic picture on basis that plaintiffs appellant have no civil right - no wrongful act committed by respondents - no violation of duty - suit does not fall under section 9 - injunction cannot be granted to prevent on ground of nuisance - film not publicly exhibited - no compulsion to see picture - balance of convenience in favour of respondents - held, temporary injunction cannot be granted. - - and prayed for forgiveness and was not aware of the discrimination while returning was gmted by.....1. the plaintiffs appellants filed civil suit no. 2736 of 1975 in the city civil court, ahmedabad on sept. 10, 1975 claiming a permanent injunction against the defendants respondents restraining them from exhibiting the cinematographic picture named 'jai santoshl maa'. defendant-respondent no. 1 is a name and style of business carried on by defendant-respondent no. 2, who had produced the said movie. defendant-respondent no. 3 is the director of the movie and defendant respondent no. 4 had written the them thereof defendant-respondent no. 5 is the distributor and defendants-respondents nos. 6 to 14 are the theatres wherein the aforesaid movie was exhibited in the city of ahmedabad after filing of the suit the plaintiffs to* out a notice of motion for a temporary injunction restraining the.....

1. The plaintiffs appellants filed Civil Suit No. 2736 of 1975 in the City Civil Court, Ahmedabad on Sept. 10, 1975 claiming a permanent injunction against the defendants respondents restraining them from exhibiting the cinematographic picture named 'Jai Santoshl Maa'. Defendant-respondent No. 1 is a name and style of business carried on by defendant-respondent No. 2, who had produced the said movie. Defendant-respondent No. 3 is the Director of the movie and defendant respondent No. 4 had written the Them thereof Defendant-respondent No. 5 is the distributor and defendants-respondents Nos. 6 to 14 are the theatres wherein the aforesaid movie was exhibited in the City of Ahmedabad After filing of the suit the plaintiffs to* out a notice of motion for a temporary injunction restraining the exhibition of the movie by the defendants. On notice being given to the defendants, they appeared and showed cause. After hearing both the parties the learned City Civil Judge discharged the rule on the ground that the subject-matter of the suit did not involve any civil right of the plaintiffs and consequently did not far under Section 9 of the Civil Procedure Code. In order to complete the judgment the learned trial Judge considered the motion on merits and came to the conclusion that the title of the movie and the advertising literature thereof Cleary indicated that the mode was religious and mythological and it was natural that any person interested in mythology and when attracted and sm the picture, it would hurt his religious belief. It is this order refusing the temporary injunction which is challenged in this appeal.

2. The plaintiffs claimed to be firm believers in Hindu religion and in Gods and Goddesses of the said religion even though they do not be-, long to any qxcific sect or Sampradaya. The plaintiffs hold in high esteem all Gods mentioned in the Puranas and are firm believers of Brahma. Vishnu and Mahesh and Goddesses Lakshmi, Parvati and Saraswati, etc., and visit their temples according to convenience. The background of the suit film is since last 20 years a practice amonqst many Hindu women is prevalent of observino Wit in the name of Santoshi Maa and the said Vrat has acquired considerable importance amongst Hindu women. The person observing the said Vrat has to partake one meal on Friday. listen to the story of Santoshi Mata and distribute gran, and gur as 'prasad' and does not eat any sour items on that day. Defendants Nos. 1 to 4 have produced the said film taking the basis of the story of Santashi Mata which is fainiliar to these observing the Vrat. The said story in short is that an old had purchased and eaten 'Ambli'.lady has 7 sons, out of which she Santoshi Matta was infuriated because has more affection for 6 sons,, and of non-observance of the Vrat and, the seventh was not a favourite son. therefore, the Government officers The old lady used to serve food to had arrived and arrested the hus the 7th son which remained after band. 7herefore. the wife again serving dinner to the 6 sons. The went to the temple of Santoshi seventh son was a simpleton and Mate. and Prayed for forgiveness and was not aware of the discrimination while returning was gmted by her but his wife was intelligent and sharp. She informed her husband about the discrimination and after having been convinced aboutsuchdis crimination the seventh son went away to a distant city and obtained service in a shop. In course of time, because of his honesty and efficl nev he became a big businessman. His wife was very miserable' at home and she was sent to the forest to collect wood for fuel and was re cjuired to do considerable work. She was very badly treated and was given on ly a piece of bread and water in a broken dish. She saw some la.dies observing the Vrat of Santosht Matz~ and after asking them about the same she went to -the temple of Santoshi Mata after taking gram and gur and commenced observing the Vrat. After the lapse of one Friday she received a lefter from her husband, on the second Friday and on the third Friday she received money. Thereafter her husband got a message in his dream through Santoshi Mata to return to his wife and -accordingly he left for his house. His wife was in the temple and observing a cloud of dust she asked the reason thereof to Mataii who informed her. that her husband was returning. Her husband had gone home and when she entered the house with log of wood on her head and asked for her Piece of bread and water she was given the same in a broken dish and seeing that the husband took up a separate residence and stayed with his wife. Thereafter she wanted to celebrate the Vrat of Santoshi Meta and she had invited her elder sisters-in-law and their children. The elder sisters-in-law had coaxed the children to demand sour items for their food and the children had asked for sour items which were not given. There fore, they. asked for money and after taking the money the said children had puschased and eaten 'Ambli'. Santoshi Mata was infuriated because of non-observance of the Vart and, therefore, the Government officers had arrived and arrested the husband. Therefore, the wife again went to the temple of Santoshi mata, and prayed for forgiveness and while returning was greeted by her husband and, therefore, an the next Friday again the Vrat was celebrated at which Mataii assumed a devilish form and in spite of that the wife recognised her and waaRmtlyelated at her arrival, threw the child the Mataji who received the same in her arms and thereafter blessing all, Matail - disappeared. According to the plaintiffs the Vat of Santoshi Mats is a Vrat of folklore because - there is no reference thereto in the scriptures. There are also no ancient temples of Santoshi Mats. Notwithstanding the fact that the story is ON above, defendants Nos. I to 4 have produced the film which contains the following story. Ganpathy's sister Manse is tying Raksha on the hand of Ganpathy when, his 2 sons also are present and they insisted that their aunt Manse should also tie Raksha on their hands. Thereupon the aunt explained to them that Raksha could be tied by a sister and because they did not have sisters Raksha could not be tied on their hands. Thereupon the sons were disappointed and therefore, Narada requested Ganpathy to Produce a daughter and Ganpathy immediately produced a daughter whotiedRaksha to the sons of Ganpathy. . Narade declared that the daughter of GanpathV would be known in the world as santoshi Mata. There is no such incident in the Puranas and Ganpathv did not have a sister by the name Mansha. Ganpathv's sister's name was Usha and there is no reference in the Puranas that Ganpathv had a daughter. After the Introduction of, Santoshi Mats in the picture there is a scene of temple of Santoshi Mata and the song of arti of Santoshi Mats is being sung. Satyevati, the heroine of the said film, is returning home with her friends after performing the Aarti and on the way meets Biriu, the hero of the film. They fall in love atfirst sight, and thereafter 'noth of them go to their respective houses.The father of Satyavati is also a devotee of Santoshi Mata. Biriu has brothers 'and an old mother. The brothers are cultivating lands but Biriuis an artist and is an expert in Playing the flute and singing songs. He is invited to recite Bhajan at the temple of Santoshi Mata in the village of 'the heroine Satvavati and ,therefore, Birju goes there and recites Bhalan at which time Satyavati and her friends are also present. While returning from the temple she is accosted by a villain, Bankav who with his associates tried to molest Satya-vati. At that time Birju with his.friends arrive on the scene and Birju and his friends give a beating to the villain and his associates. is slightly injured and Satyavati takes him to her house and in forms her father about the incident. Thereafter Birju goes to his house. The brothers of Birju thereafter arrange the marriage of Satyavati with Birju. The marriage is performedand Birju and Satyavati return home when her elder sisters-in-law deliberately cause inauspicious incidents to hap pen. Thereafter both of them go on a pilgrimage of various places of Santoshi Mata. Thereafter there are scenes of Brahmani, Laxmiji and Parvatiji. Narad goes before them and informs that he is a devotee of the three Goddesses but the people on earth are devotees of Santoshi Mata. Narada is praising Santoshi Mata and the devotion of Satvavati for Santoshi Mata. He further states that there is no Goddess like Santoshi Mata and, therefore the three Goddessesare jealous and decide to teach a lesson to Satyavati. In the meantime Brahma, Vishnu and Mahesh in the guise of mendicants go to the house of Satyavati for Bhiksha and when they return Sarasvati, Laxmi and Parvati inquire of them and, they also praise Satyavati and state that Satyavati isa staunch devotee of Santoshi Mata and thereupon the Goddesses decide that they will not allow the influence of Santoshi Mata to in crease and the Goddesses inform Satyavati to give up the devotion of Santoshi Mata but Satyavati humbly refuses to do so and thereupon theGoddesses challenge Satyavati to be prepared for the consequences. The wives of the brothers of Biflu dislike Birju and, therefore, whatever food is left over in the plates of the others is being collected and served in a plate to Birju. Satyavati sees this and informs Birju about it and Biriu also sees that. Thereupon there are disputes in the house and Biriu declares that he will return after earning money and leaves the house. Narada informs the three Goddesses that they must now have been 1pleased when the three Goddesses stated that so far only Biriu has left his house, 'we will bee what happens to him. After leaving the house is crossing a river in a boat and the Goddesses have the boat sunk and Biriu is drowned in the river. Satyavati prays to Santoshi Mata for the welfare of her husband, and thereupon Santoshi Mata lifts Biriu out of the river and places him on the bank and brings him to life. Birju thereafter goes to the temple to Santoshi Mata for Darshan where a rich jeweler becomes sick and unconscious. His jewellery is scattered over. Birju sees that and nurses the jeweller and brings him to his senses and returns the jewellery to him and the jeweller gives employment to Birju where BirJu' achieves considerable progress with hard work and becomes a family member of the jeweller. The daughter of the jeweller is in love with Birju. But Birju remembers Satyavati and when the daughter of je weller shows love to Birju then Birju gets up with the memory of Satyavati. At that time the three Goddesses contrive that Bidu forgets Satyavati and Birju accepts the daughter of the jeweller and forgets his house. Satyavati who is being harassed from all sides now performs the Vrat of 16 ' Friday. Narad informs the three Goddesses that on fhe completion of the Vrat of Satyavati the Maya of the three Goddesses willbe completed andthere will be reunion of the husband and wife. Thereupon the Goddesses declare that they will not allow the Vrat to be completed. Santoshi Mata asks to go to his home and when the Vrat is about to be completed returns home with jewellery, ornaments, riches etc. and everybody welcomes him but seeing the condition of Satyavati he is very angry and stays separately. Ilieve is celebration of Vrath and Satvavati invites the brothers of BirJu and at the tirne of worship and 13haian the wives of the brothers of Bidu Poar sour things in the food an- thereupon the children die and SantosM Mata is angry and there is destruction. Satyavati again prays to Santoshi Mata and Santoshi Mata ispleasedand revives the children. The case of the plaintiffs for injunctionis based ,on the ground that the movie is Pretented as a religious and mythological one even though it is rot so in fact. Persons havina interest in religion and mythology will be attracted by the picture md vAwn the same is seen by them ft will hurt their feelina as Goddesses Sarasveti, Laxmi and Parvatt are depicted jealous and are ridiculed. The diefendants have definitely distorted and abused Hindu mythology and they have depicted the mytholoff by introducing invented story.

3. The defendants have contested the application for invasion. to vrant of temporary injuriction, contending that the suit file d is not of eivil nature and no injuivetion could be issued either under the provisions of 0. 39. Civil P. C . fheremafter referred to as the Code) 43T the provisions of the Specific Relief Act. The suit had been filed by the plaintiffs with mala fide intention and to harass the defendants, adding that defendant No. I had information that the plaintiffs have previously filed a suit against the iffim narned 'H&T; Har Mahadev.' In Para 7 of the affidavit of respondent No. 1, it is stated that the film in question is religious and mythological one but denied that it litirt the religious feelings of Trindus. It is admitted by the defendants that some mythological boolm do not refer to the incidents of Safitosh! Maa. The said film discloses in the very beginning that the entire film is imaginary and it would he fallacy to appreciate the said film with reference to mythological books. The defendants state that it is usual and normal to show in religious and mythological films, certain incidents which go to show that Gods or Goddesses are tivitW to test the -sinceitty of the devotee and that end, the devotee is made to suffer misery and hurnihatiam In The film the three GodOessm are depicted to be saying that they tried to test the sk3oeritv of Satyavati in her devotion to Santoshi Mata and this itself indicates Ought there was no malice as alleged by iffie glaintiffs. They deny thut the movie bwts religious feelings of Erindus. The film had been exhi in a laTge number of c%es and towns. There were about 100 prints being -exhibited throughout the country. The said film was being exhibited sirme -last 4 -months, that is, &ince; Ame, 1975 and -no person had complained about his religious feelkigs havinn been hurt by *m exibitian of 'the film. The film had 'been seen by about 1,46,00,000 People throughout India and none of *tem %save complained about their refigious fee%n*s being hurt. 'The fihn is being em%bited after the Board of Censor bas given certificate under the Cinematograph Att, 19S2.

4. The question is whether the present claftn of the m4ah7tiffs is of a tivil nature. Section 9 -of the Code provides Ithat tbe Court -shall have jurisdiction to try all arits of a -civil nature excepting suits of -which ,mw izarme is eltber expressly or impliedly barred. The explanation to the section provides that a suit in wbit4h rioht to property or to an of -fice is eorytested is a suit of a civil nature, notwAbstanding that such right way depend entirely on the decision of questions 'as to religious rkbes or cemn onies. Section 9 -of the Code thus prescribes the nature of the suit which a Court has jurisdiction to -erft-ertain. It can entertain tther saft of civil nature excepting the suits -of with voRnizance is barred. ne Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising question of religious rites and ceremonies only am -not maintainable in Civil Court for they do not deal wJA legai rights of the parties. But the explanation to the -section accepting the said =disputed position, says that a ndt in which right to Property or to an office is contested is a suit of civil nature, notwithstanding that such right may 4wperA e - lee an the, daemon at the questions . as to religious rites cc ceremenhes. This implies two things, umnely, (1) a suit for ark affim is a soft ad a civi notare~ aed (2$ * does m* to be one if the said rizbt depends estirely upon a decision ad a questim as ix> the religiemt rites or cerwoonies. It iroplies further that question as t& reNgieva rites or - - . - ` canmet htdopendenft of such a right form the subtect-nuMder at a civil suit: vide, Sinha Ram&n.uta; Jver Y_ Banga. Ramsnuja Jeez : [1962]2SCR509 ,. 'Mere is no question in this suLt to the Property cc to an office and explanation to Section D has 100 application It is not suxaested in this ease diat the cognizance of suA is either expressly ar imphedly barred. The c of the plaintiffs is that the present case is of czvd nature which the defendants dimAe. In order to, support the cam that the Present suit is of civil nature, Mr. Modi for the appellants put forward two broad conterwons. The first eontention w thal Art. 25 of the Constitution guarantees freedom of conscience and free profession, practice and propagation of religion. Ordinarily civil right is raised to a status of a fundamental right and this fundamental. right can beenforced by a civil suit even though it can-, not be enforced under Art. 226 of the Constitution The second contention is that religious feelings ol an individual, is a part of civil right and any hurt to it is an actionable one. This is so. for 3 reasons,- (1), thatan obligation is cast upon the defendants as a result of the provisions of Ss. 295 and 295-A of the I. P. C. not to destroy or defile any object held sacred by any class of persons with the intention of insulting the religion of such class of persons and also not to outrage religious feeling of any class of people by words, either spoken or written or by sign or by visible representations or not to otherwise insult or attempt to insult the religion or the reliqious, belief of that class and there is in the present case a breach of this statutory obligation. (2). the injury complained of by the appellants is not as a result of purely rrivate action inasmuch as the state has granted its sanction by issuing a certificate through the Central Board of Film Censor for public exhibition of the film. Issuance of such certificate clothes the production and exhibition of the movie with the authority or sanction of the State and the appellants are. therefore, entitled to i4junction for protection of their rights under Articles 25 and 26 of the Constitution of India hwr. infringement by any act which bears the impression of the State and (3) to hurt religious feeling of a Person is a tort. The question is how far these contentions raised by Mr. Modi with ability and pursuance can be accepted'. Now Art. 25(1) of the Constitution provides that subject to Public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to Profess, Practise and propagate religion. Under this Article right to Profess is recognised as a fundamental right subject to certain limitations. This Article recognisesi the principle, that it is policy of the State to protect all religions but to interfere with none. It enunciates tradition of religious neutrality of the State. It enjoins to certain extent, that the State shall not interfere with the right to profess, practise and propagate religion. The provisions of Art. 25 of the Constitution are to be read with Art. 13 of( the Constitution and it is abundantly clear that what is provided therein is an express prohibition against the legislative interference with the rights mentioned in Art. 25 of the Constitution. In this connection the provisions of Arts. 17 and 23 of the Constitution may be noted. Art. 17 provides that 'untouchability' is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of 'untouchability' shall be an offence punishable in accordance with law. Article 23(1) Provides that traffic in human b0ings and beggar and other similar forms of forced labour are prohibited and any contravention of this Provision shall be an offence punishable in accordance with law. The Provisions of these two Articles prohibit an individual from doing any act contrary thereto. That is not the case with Art. 25. The provisions of Art. 25 are similar to Articles 19 and 31 of the Constitution. The language of Art. 25 and its setting in Part III of the Constitution manifestly indicate that the violation of rights under Art. 25 by an individual is not within the purview of the Article; see the decision in P. D. Shamadasani v. Central Bank of India Ltd. : [1952]1SCR391 , where the Supreme Court considered the provisions of Arts. 19 and 31 of the Constitution, which Articles are worded similar to Art. 25 and the Court held that Arts. 19 and 31 were not intended to protect violation of the rights by an individual.

5-7. The next contention may now be considered and it is that certificate for exhibition of the movie granted by the Central Government clothes the production and exhibition of the movie with the authority and sanction of the State and law and, therefore, the appellants are entitled to protection of rights under Arts. 25 and 26 of the Constitution from infringement by any act which bears the impression of the State. In support of this argument much reliance was placed on the judgment of Mathew J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi : (1975)ILLJ399SC , wherein the learned Judge was considering the question whether Oil and Natural Gas Commission, Life Insurance Corporation or Industrial Finance Corporation were 11 other authorities' within Art. 12 of the Constitution. The learned Judge held that the expression 'other authorities' would include all constitutional or statutory authorities on whom powers are conferred by law. The learned Judge approached the question by observing (at p. 1353 of AIR):

'Does any amount of state help, however inconsequential, make an act something more than an individual act? Suppose, a privately owned and managed operation receives direct financial aid from the State, is an act of such an agency an act of State? It would be difficult to give a categorical answer to this question. Any operation or purpose of value to the public may be enuraged by appropriation of public money and the resulting publicly supported operation can be characterized as a state operation. But such a rule would seem to go to the extreme. There seems to be no formula which would provide the correct division of cases of this type in~ to neat categories of State action and private action. Some clue however, to the considerations which might impel the court in one direction or the other may be obtained from an examination of the cases in this area. The decisions of the State courts in U.S.A. seem to establish that a private agency, if supported by public money for its operation would be 'state'. But in all these cases, it has been found that there was an element of control exercised by the State. Therefore, it may be stated generally that State financial aid alone does not render the institution receiving such aid a state agency. Financial aid plus some additional factor might lead to a different conclusion. A mere finding of state control also is not determinative of the question, since a state has considerable measure of control under its police power over all types of business operations. It is not possible to assume that the panoply of law and authority of a state under which people carry on ordinary business, or their private affairs or own property, each enjoying equality in terms of legal capacity would be extraordinary assistance. A finding of state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action.

Another factor which might be considered is whether the operation is an important public function. The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency. If a given function is of such public importance and so closely related to governmental function as-to be classified as a governmental agency, then even the presence or absence, of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description, then mere addition of state money, would not influence the conclusion.

The state may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes. All these are relevant in making an assessment whether the operation is Private or savours of state action.'

It is this reasoning on which the arguments of Mr. Modi are founded upon. Now the question thus involved is not a pure question of law but requires investigation of facts. It was sought to be raised for the first time in this Court by amending the memo of appeal. Under the provisions of the Cinematograph Act, 1952 Film Censor Board is established. It also provides for advisory panels at regional centres. The Board after examining the film permits it for exhibition. The principles for guidance are to be found in S. 5B of the Cinematograph Act, which provides so far relevant that a film shall not be certified for public exhibition if, in the opinion of the authority 'competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. There are certain general principles laid by the Central Government in this connection. It is in pursuance of these provisions that certificate of exhibition was granted to the defendants for exhibition of the movie in question. To put in short the provisions of the Act relating to sanctioning of exhibition of a movie are regulatory and amount to licensing exhibition of film. There is no unusual degree of control over the management producing the movie. Merely licensing control envisaged by the provisions of the Cinematograph Act cannot be a determinative question for a state has considerable measure of control under its police powers over all types of business operations. It is, therefore, not possible to accept that this regulatory power of the State over the ordinary business of the defendants would result in extraordinary assistance of the State or that the production and exhibition of the movie is with the authority of the State or is the action of the State which would attract the provisions of Arts. 25 and 26 of the Constitution. The argument is misconceived and there is no merit in it.

8. The other contention may now be noted and it is that a legal duty or an obligation is cast upon persons and especially the defendants as a result of the provisions of Ss. 295 and 295-A of the Indian Penal Code. Ss. 295 and 295-A of the Indian Penal Code are as under:

'295. Whoever destroys, dampers or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion, shall be punished with imprisoment of ; either description for a term which may extend to two years, or with fine, or with both.

295-A: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India. by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term. which may extend to three years, or with fine, or with both.

Now there are certain wrongs which are exclusively criminal. The legislature intends to deal with such wrongs by declaring them as offences and providing punishment. All wrongs are not actionable torts or to put in other words they are not actionable In Civil 'Court. This point is raised for the first time in this Court and determination thereof depends upon the allegations made in the plaint. Now the relevant allegation in the plaints are that the Mendants have produced the movie taking advantage of I blind religious - faith of Hindus. The character of Gods and Goddess are depicted in arbitrary manner and without any authority of scriptures and in the manner that is likely to hurt the religious feelings of the Hindus. The movie is Produced for the purpose of earning money, that is, for commercial purpose. There are no allegations of mens rea as contemplated by the Provisions of sections 295 and 295-A of the Indian Penal Code with the consequence that no breach of legal duty or obligation has been alleged much less established. It is the duty of the plaintiffs to allege that there is a breach of duty or breach of statutory obligation before they can claim a right to sue. 7here is no complicit, of infraction of the provisions of Ss. 295 and 295-A of the Indian Penal Code and, therefore. the aforesaid arguments have no merits. The decisions in Monk -%r. Warbey 1935 KB 75 and Krishna Kali Mallik v. Babulal Shaw, AIR 1965 Cal 148, are of no assistance to the plaintiffs. It is. not necessary, therefore, to consider the argument of the respondents that the provisions of Ss. 295 and 295-A of the Indian Penal Code only provide for criminal liability and no liability in tort can arise from the breach thereof.

9. This leads to the last contention of - Mr. Modi that the movie depicts Gods -and Goddesses as jealous, they are ridiculed and there is a misrepresentation, because it is stated that the movie is based upon mythology and as a result religious feelings of the appellants and other Hindus are hurt. The defendants have committed a tort - and actionable one for which a civil suit can lie. No doubt, contended Mr. Modi, the respondents have a right to produce a movie and to exhibit the same. but this right is to be enjoyed by them in such a manner as not to hurt legal rights of other persons. The scenes in the president movie have hurt rellRiGus feelings of the appellants and other Hindus and have caused them mental Dain and strain. Tile reliflion embraces not merely matters of doctrine and beliefs pertaining to religion but the practice of it. Mythology is a part of religion. The religious susceptibility of persons of different religious persuasion or creed must be respected and there must be due regard to religious feelings irrespective of whether one shares the belief or not. Hence in the present ca there is infringement of legal rights of the appellants and other Hindus. There is damage to their feelings because the religious feelings are hurt which cannot be compensated in money In this case there is an actionable tort. The scenes depicting the Gods and Goddesses as jealous and wherein they are ridiculed are offensive and indecent and religious feelings of the appellants and other Hindus have been hurt. This act of the defendants amount to nuisance which is an actionable wrong. The misrepresentation made by the defendants that the story of the movie is based upon mythology though in fact it is not so, is also a tort.

10. The aforesaid arguments of Mr. Modi require careful consideration. Now in Para 6 of the affidavit filed by defendant No. 1, it is stated that the film is religious and mythological one. In Para 9 of the affidavit A is stated that mythological books do not refer to the Santoshi Maa. At the commencement . of the movie, it is stated that the entire film is imaginary and the narration of Santoshi Maa is derived from some, religious books and folk tales. It is not stated in the film that it is mythological Picture. It is only in the affidavit that it is stated that the film is religious and mythological. Reference to mythology in paragraph 6 is not totally untrue because Gods and Goddesses, namely, Ganpathy, Narad, Saraswatip Laxmi and Parvat! are referred to in mythology and are also shown in the movie. It is not the statement of the defendants that Goddess Santoshi Maa is a mythological figure. It is clearly mentioned in the introduction that Santoshi Maa narration has been derived from religious books and folk tales. In Ex. 30, the affidavit of defendant No. 1, it is stated that the story is based on incidents narrated in Kalyan Magazine, Shukravar Vrat Katha and Shiv Mahapuran and other relevant literature on the subject. The reference to religious books does not mean reference to books on mythology or Puranas. There is no dispute that there are certain religious books which give the story of Santoski Maa and these are considered as religious books. The Warning given before the actual movie commences has to be kept in mind and the movie is to be viewed in that light and not in ignorance of that. In view of the foresaid statement made at the commencement of the film it cannot prima facie be accepted that the defendants have made anv misrepresentation as alleged by the plaintiffs, viz., that the movie is pass~ ed off as a mythological film. And after all what is 'mythology'? The word mythology comes from the word myth and dictionary meaning of the word is fable. a legend, an invented story, a fabulous narrative founded upon a remote event, fictitious primitive tale. It is stated in the Webster's New Twentieth Century Dictionary, Unbridged, Second Edition, page 119 1, that parts of mythology are religious, Parts of mythology are historical, Parts of mythology are Poetical, but mythology as a whole is neither reltgion nor history, nor philosophy, -vor PoeaT. It comprehends all theft together under that peculiar form of expression which is natural and intelligible at a certain stage, or at certain recurring stages in the development of thought and speech, but which, after becoming traditional, becomes frequently unnatural and unintelligible. Mythology is after all traditions Interwoven with the history, origin, deities, etc. of a specific people.' Taking this usual and dictionary meaning, it cannot be said that there Is misrepresentation about the film when the same is referred as mythological because in the story of the fund are interwoven the religious parts of mythology with historical parts or tradition is interwoven with history with a warning in the start that the entire film is imaginary. I therefore, do not agree with the I find in of the trial Court that the movie. is passed of as mythological.

11. Now nuisance is a word which 'is not capable of exact definition but may be defined as anything which is Injurious to health or offending to the senses and which causes injury or damage or annoyance or discomfort to others. In order that nuisance is an actionable tort. it is essential that there should exist (1) wrongful act; (2) damage or loss or inconvenience or annoyance caused to another. The latter alone can give no right to a legal action. Inconvenience or annoyance or discomfort to be considered must be more than mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material. A- person must submit to discomfort or annoyance in the interest -of the public generally or caused by lawful action of another. The question what constitutes nuisance is one which the Court has to determine. The Court has first to aseert,4n what in the circumstances is the legal duty of the individual alleged to be in default. The right to an injunction deneends on the legal right and this must be determined before any relief can be granted by the Court. A strong case need be made out by the plaintiff. Having noticed the principles of law, the objections of the plaintiffs to the exhibition of the defendents movie may now be considered. The objections of the plaintiffs that the film is based on the religion and mythology is considered here in before and the same may not be repeated. The second and the main objection of the Plaintiffs is that in the film the three Goddesse , Saraswati, Laxmi and Parvati have been depicted as jealous and arrogant. The learned trial Judge has observed in Para 4! of his judgment;

'the role assigned to the three ancient Goddesses is that of a villainous character and nothing more or less than that.'

The case of the plaintiffs, therefore, is that the film would hurt the feelings of the lowers of Hindu religion. The question then is can it be said that any right of the plaintiffs is infringed so as to give right to file a civil suit. The answer to this question ' is, in my opinion, in the negative. Now the defendants have obtained a certificate of public exhibition under the Cinematograph Act and the certificate granted there under in the opinion of the Board of Film Censors is that the film or any part of it is not amongst other things against Public order, decency or morality and is not likely to incite the commission of any offence. The Board of Film Censor . s is the body who usually grants the certificate, it is a body fairly well conversant and experienced in the matter. After care fully examining the film and keeping in mind the -principles of guidance, the Board of Film Censors has certified the film. As the certificate of exhibition is granted to the defendants, they have a right to exhibit the film. The certificate is not challenged in this case. Exhibition of the film is a legal right of the defendants. The motion of temporary injunction is one which asks the Court to interfere with the legal right of exhibition of the movie by the defendants and this interference is sought on the ground that the religious feelings of the plaintiffs and other Hindus will be hurt. The plaintiffs must establish existence of such right and such curtailment of the-right which will be actionable in Court of law. The plaintiffs and other Hindus may have reverence for the said Goddesses but what legal right of theirs is curtailed by the defendants by exhibiting the film in exercise of the prima facie legal right? The defendants exhibit the film which is certified and they do so in exercise of their legal right. No legal right of the plaintiffs is in fringed. Mere fact that the defendants' movie shocked the religious sentiment of the plaintiffs is not it self a matter which gives rise to a cause of action. No person is entitled, to whatever religion he may be long, to enforce his religious views upon another or to restrain that other from doing any lawful act, because it would not fit in with the tenets of his particular religion. It is not the case that the action of the defendants is mala fide. Every one is entitled to his own religious be life but he cannot force them upon another so as to restrain the - other from dealing with right or property in a manner incompatible to those beliefs. The defendants have clarified at the very commencement of the film that the entire film is imaginary.. The folk story of Santoshi Mata is in vogue since last many years and there are religious books which refer to it. It% may be that the feelings of the plaintiffs and persons like them, would be aroused on seeing the film and annoyance may be the result but the annoyance is not such that a Court of law can take cognizance or recognize. It is true that tort is not affined. Torts are infinitely various and not limited and confined. The novelty of claim may arise and Court may recognize a noval claim. India is a country where various religions are followed and this has to be kept in mind while evolving a new tort. The hurt to religious feeling is not recognized by the Civil Court. In Behari Lal v. Ghisa Lal, (1902) ILR 24 All 499, the facts were that plaintiffs sued for injunction restraining the 'defendants from obstructing them in cutting certain branches of a pipal tree overhanging their property. The pipal tree grew in the enclosure of a temple, and the resistance was based on the ground that the tree was an object of veneration to Hindus, and that the lopping of its branches would be offensive to the religious feelings of the Hindu community. The Court in this case observed:

'The question is serious one in this country, because, on the o-* hand, it is highly undesirable to insult or irritate the religious susceptibilities of the people; and on the other, one has to look for the existence of some principle of law by which the general feeling of one part of the population can be allowed to override the ordinary rights of property vested in another person. Mr. Tei Bahadur, for the appellants, contends that there is no such curtailment of individual right of property known to the law, and Mr. Malaviya, for the respondents, is unable, out of the long array of Indian cases, to produce a single authority in support of the judgments of the Courts below.'

The Court further observed:

'The proposition put before me is, that if the general body of a --muhalla entertain a feeling of reverence towards any tree, no individual owning a house in that muhalla can seek to lop off any of its branches which may overhang his property, even though they may prejudicially affect it. That is a proposition unsupported by authority and inconsistent with common sense.'

In Vathiar Ramanuja Aiyangar v. Aiyanachariar, (1912) 17 Ind Cas 219 (Mad) Sundara Aiyar. J. referring to an application for temporary injunction to restrain the respondents from carrying the idol of Vedanatha Desikar in procession through certain streets, observed:

'It seems to me that where no pecuniary or tangible loss is shown. it would not be right to grant stay of execution merely on the ground of annoyance to the feelings of the appellants . I think it, would be a sound rule to act upon that mere annoyance to feelings cannot- be a ground to grant stay of execution.' In that case the only injury complained of was that the religious feelings of the community would be outraged and the petition for temporary injunction was dismissed. In Khaii D6dda' v. Nanjiappa, AIR 1939 Mad 642, the facts were that the Hindus of a village objected to erection of a Musjid on the land owned by the Mahomedans, on the ground that the feelings of the Hindus would be aroused if the construction of Musjid was allowed. On this basis an injunction restraining the Mahomedans from erecting the Musjid was asked for. The Court held that the land belonged to Mohomedans and the Court could not grant an injunction prohibiting the Mohorne dans from 'erecting the Musjid on the ground of mere annoyance. The Court further observed that it must be shown that some substantial any novanoe and one which the Court can recognize, had been actually committed, before the Court could interfere. The aforesaid decisions are no'doubt old but what is decided therein applies with more force in the present times wherein the ideas about religious beliefs are fast changing and are more liberal than the Orthodox - beliefs which were prevalent in those olden days. It is thus clear that the Courts of law !have not recognized hurt to religious feelings as a civil actionable wrong.

12. Mr. Modi relied upon the decision in Owens'v. Liverpool corporation.' 1939 (1) KB 394. In that case a funeral procession was going along Scotland Road, Liverpool, when a tramear was so negligently driven by a servant of the defendants that it violently collided with the hearse, damaged the hearse and caused the coffin to be overturned, with the result that the mourners at the funeral, who were relatives of the dead man, suffered severe mental shock. The aged mother of the deceased, an uncle, a cousin and the cousin's husband, sued the defendants for damages for the shock injury suffered by them. The Court in this case considered an English law prior to the decision and the law was that no action in tort lay for mere mental suffering unaccompanied by physical harm though caused by the willful act or carelessness of - the defendant. This principle was departed in this case and damages were awarded to the plaintiffs therein on the ground that the defendants were guilty of negligence and real injury genuinely had been caused for mental shock. Owens's case was not accepted by Lord Thankerton, Lord Machmillan, and Lord Porter in Hay or Bourhill v. Young, 1943 AC 92. In this connection Lord Porter observed:

'With all respect, I do.not myself consider the Court of Appeal justified in thinking that the driver should have anticipated -any injury -to the plaintiffs as mere spectators or that he was in breach of any duty which he owed to them.'

Therefore the pertinent question- 'I for determination must be, is there any legal duty violated by the wrongful act? There must be wrongful act and violation of the legal duty. In the present case these ingredients for the reasons stated aforesaid are not established and, therefore, the learned trial Judge was right, in my opinion, that none of the plaintiffs civil rights is involved and therefore, the suit cannot fall under Section 9 of the Code.

13. Granting of injunction is governed by the provisions of Order 39 of the Code and Section 41 of the Specific Relief Act. Sub-rule (1) of Rule 2, of Order 39 of the Code provides that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to, the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of. Section 41(f) of the Specific. Relief Act provides that an injunction cannot be granted to prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. In cases of interlocutory injunctions in aid of -plaintiff's right, all that the Court usually has to consider is whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve property without waiting for the right to be finally -established. See Halsbury's Laws of England, Third Edition, Vol. 21, page 364. In the present case in any case the plaintiffs cannot get an order of injunction of the Court against the defendants as it is not reasonably clear that the exhibition of the film will be a nuisance.

14. The next question is of the balance of injury. In order to grant temporary inj unction the principle of balance of injury is a material one. On this point the learned trial Judge has given the judgment in favour of the plaintiffs and it is attacked in this Court. The learned Judge came to the following conclusions:

'In fact a folk story prevalent for the last about 50 years has been mingled by the author with mythological taint to impress, upon the audience to feel that the theme being shown to them is a part and parcel of mythology. The film in question was arranged to be shown to the court; having seen the film and the script produced at Exh. 35/1, if one were to speak in the legal parlance, an attempt is made by the defendants to pass off their theme as a mythological one to the orthodox believers . ... ..... If now, such a theme is being exhibited to the public when there is absolutely no mythological basis for it, it is very clear and patent that the tenets of the religion are being infringed if for a moment one considers Hindu mythology as part and parcel of Hindu religion The defendants have by introducing their theme, in my opinion deviated totally from true mythology understood as above. Again, it is well known that the Gods and Goddesses in Hindu mythology have been imputed by the authors of mythological scriptures with elements like anger, envy, hatred etc, In each mythology the particular God or 'Goddess to which it relates, is shown as superior and the rest as subordinate in rank or even much lower and much weaker. But then, all the aforesaid mythology. Speaking collectively thereof, has already' become part and parcel of Hindu religion and is quite too ancient. What ever it is, it is that mythology which is being revered by the followers of Hinduism. But, this aspect Of the mythological part of the religion does not mean that in the Present day, an author of a literary work or a Director or producer of a film has a right to further distort, deform of abuse ft. And if this view Of mine is correct one, to that extent, the defendants have gone be Yond their own scope of authority... ...... that the defendant's movie, as a whole, as well as in aforesaid parts or aspects discussed by me earlier thereof, would hurt the religious feelings of the followers of the Hindu religion and in that connection, I would also further state that the defendants had no right to depict the theme as mythological or religious one when, in fact, no such theme existed in Hindu mythology... ......the citizen in the present century has no right to impute vices such as envy, ego pride, prejudice, bias or vengeance or the like in the Gods or Goddesses of the Hindu religion and its mythology or other wise depict those Gods and Goddesses in any unseemly, deformed, abusive or lowering manner as the defendants have done.'

Now Santoshi Mata is referred in religious books. There are admittedly folk tales in her connection and as said -hereinbefore there is no case for passing off action as observed by the learned trial Judge in the sense that the Sm is passed as a mythologies am. What in necessary, to CDnsider Is overaH effect of the movie and the Mn is to be seen and appreciated as a whole. The incidents dxnlld not be broken from their respective consist; no pert of it should be isolated fmm the other At the 1 01 FM of the picture warnbg is given that the entire movie is Imaginary; at the end of the. Picture, ft is dewly shown that the three adtnowledged ancient Goddesses Wd in the Picture that they were testing the devotion of Satyavati to Santodd and it w4m with this holy and bona fide intention that they inflicted miseries upon her and they were happy that Setyevati successfully came cut of them Together with We num also take into account what defendant No. 1 has stated in Para 14 of his affidavit, namely, that ft film had been exhibited in large number of cities and towns; there were about 100 prints being exhibited Onvughotit the country, the said film was being exhibited since last 4 nxmft throughout the country avid no pea had complained about his or her religious feelings having been hurt by the exhibition of the film. In Zi , r, St. the affidavit of defend No. 4, it is stated that so far as per available record, the film had been man by 1,45,00,000 people Giroughout Didia. The aforesaid facts stand nemtroverted. The suit is sought to be filed in the representative capacity. but so leave of the Court has been obtained by the plaintiffs. Plaintiff No. I is Jain by religion, and the two plaintiffs alone have come forward with an allegation; that the exhibition of the film hurts their religious feelings The defendants have right to exhibit the film. in pursuance of the certificate of exhibition obtained by them. The film is not publicly exhibited. that is to say it is not being -shown to the 'who do not want to Bee it; it is - shown on payment; People have to use their volition to gee the picture. There is no compulsion to see the film. If the feelings of the plaintiffs an hurt they may not see the movie 801n. The plaintiffs may propagate against the picture urging the f*How religionists not to see ft. ft more be that the religious feeling of the plaintiffs is hurt, but considering all the material circumstances of the case as stated herein above, I am of the view that balance of convenience is in favour of the defendants. The expression of opinion herein before is for the purpose' of temporary injunction only.

15. The result, therefore, is that this appeal of the plaintiffs is dismissed and the impugned order of the learned trial Judge is confirmed. There shall be no order as to costs of this appeal.

16. Appeal dismissed.

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