2002 Supreme(Bom) 917

IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Manisha Koirala .... Plaintiff.
Versus
Shashilal Nair others.... Respondents.
Notice of Motion No. 2180 of 2002 in Suit No. 2750 of 2002, decided on 30-8-2002.
Advocates appeared :
Dr. Virendra V. Tulzapurkar, Sr.C., i/b. Anil Menon, for plaintiff.
Janak Dwarkadas, Sr.C. with Raju Subramanian i/b. Pandya Gandhy Co., for defendant No. 1.
G.R. Kirkhabwala i/b. Nilesh Pandya, for defendant No. 2.
Ms. Anita Castellino with A. Gokhale i/b. Desai Desai, for defendant No. 3.

Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rules 1 and 2 - Injunction order - On release of film - Absence of proper material before Court that in term of contract certain conditions were imposed - It can be inferred that she was present at the dubbing room and also saw the film - Scenes objected were part of story no breach of any contract - Burden to prove not discharged - Injunction cannot be granted. - It is clear that the scenes were those on the story board but were not played by the plaintiff but by the fill in artist. After seeing the film it is the case of the plaintiff that pages 4, 35 to 37 of the story board were agreed to be deleted. Pages 86 to 88, according to the plaintiff, were not shown in the film screened for her viewing and it was agreed that page 88 would be deleted. From the above what emerges is that from pages 86 to 88 what was to be deleted was page 87 and not pages 86 and 88. Lastly it is set out that the proposed scenes at pages 89, 90 and 91 were expressly agreed to be deleted from the film. In other words they formed part of the story board. Therefore, clearly pages 4 (frames 1 and 2), 35 to 37, 86, 87, 88, 89, 90 and 91 prima facie was part of the story board. What is material, therefore, is that these were the scenes which were contained in the story book, but to which the plaintiff took offence. There is a dispute as to under what circumstances the plaintiff agreed to the double acting in the sensitive scenes. The plaintiff herself has admitted that double could have been used but would be subject to what the plaintiff contends in para 9 of the rejoinder. That the defendant No. 1 filmed those scenes with the double cannot be disputed. As pointed out earlier Mrs. Maria Sharma one of the affiants who has filed an affidavit in support of the defendant has not denied payment made to her for the shooting on 19th and 20th March. The explanation for the payment only comes in the affidavit of the plaintiff in para 16 of the rejoinder. This cannot assist the plaintiff. It ought to have come from Mrs. Maria Sharma who could have traversed those contents in a like manner she has denied some other allegations in the affidavit of defendant No. 1. It is, therefore, clear that certain scenes were filmed with the full-in artists/double with the help of the plaintiff s hair dresser. There is no material before this Court to hold that as term of the contract, for the plaintiff acting in the film, she had imposed certain conditions, which had been agreed to.

       Civil Procedure Code, 1908 - Order XXXIX, Rules 1 and 2 - Injunction on release of film - Ground - Breach of contract - Action of Censor Board not challenged - Very limited issue of existence of contract and its breach is raised - Exchanging objectionable scenes with other scenes - Matter between Artist and Director - Plaintiff failed to discharge burden - Breach of contract not proved. - That letter at the highest is an intimation to the plaintiff that certain portions of the film shot with the double involve certain level of physical exposure and if the plaintiff has any objection to any particular section, the defendants stood to replace it with alternate shots. It is nobody s case that the plaintiff personally was present when the double performed the disputed scenes. It has been explained that at the time of shooting of the film, alternate shots of the film are taken for substitution, if there be objection. The case of the defendant no. 1 is that on objections raised by the plaintiff to the original shots they have substituted them by alternate. The alternate shots are the one which have been approved by the film Censor Board. Apart from that the plaintiff was present at the time of dubbing of the film. In para 5(1) of the reply filed by defendant No. 1 it is set out that she was present and saw the film. In rejoinder at page 17, the defendant No. 1 denies that at the time of dubbing she requested the alternate shots to be used. There is no specific denial of her not being present. Therefore, a reasonable inference that she was present. The other letter is of July, 10, 2002 addressed to the Secretary of the Cine and T.V. Artist Association. In this letter it is not the case of the plaintiff that there was any earlier contract under which the defendant would shoot scenes with fill-in artist as approved by the plaintiff. All that the letter shows is that certain scenes filmed with the fill-in artist were agreed to be replaced by the defendant No. 1 and she had objected to four shots which were beyond the level of acceptance. The response of defendant No. 1 to that is immediate, that with those kind of objections he will have to reshoot the film and in that case the plaintiff should reimburse 50% damages incurred in the process. The story board and the film would disclose that the scenes were part of the story board. The defendant No. 1 Director describes them as integral to the film. The film itself has been cleared by the Censor Board-our moral guardian.

       Is it for the Court to decide whether certain scenes are impermissible and/or not to be exhibited. Even otherwise it is ultimately for the creator of the film, the Director who has visualized the concept and who is the maker of the film to shoot the film and the Censor Board to decide whether they should be exhibited for public viewing. The plaintiff has not challenged the action of the censor Board in allowing the scenes to remain as part of the film. The only limited question is the existence of the contract as pointed out by the plaintiff and the agreement by defendant No. 1 to replace those shots by alternate shots. Considering the story board as available before this Court, the documents on record and the affidavits it is not possible to come to the conclusion that there was an agreement between the plaintiff and the defendant No. 1 as pleaded by the plaintiff and that the defendant No. 1 breached the agreement. The plaintiff has failed to discharge that burden at this stage which is required for this Court to arrive at a conclusion that there was a contract and that the defendant No. 1 had breached the said contract. Further the case of the defendant No. 1 has been that the four shots which were objected have been replaced by the alternates as requested by the plaintiff

       Civil Procedure Code, 1908 - Order XXXIX, Rules 1, 2 and 2-A - Ad-interim order - respondent restrained from exhibiting film during pendency of appeal - - Film was released - Appellant did not take any action immediately - She approached political parties and I&B ministry for relief - Suo motu criminal proceedings initiated against appellant - Appellant abused process of Court - Her conduct disentitles her for any relief from Court. - Besides that the Senior Counsel appearing for defendant No. 1 submitted that the plaintiff for implementation of the order passed by this Court on 5th September, 2002, sought help of third person and, therefore, she has disentitled herself from any relief. There is substance in submission of Mr. Chagla, Senior Counsel for respondent No. 1. This Court initiated suo motu criminal proceedings against the plaintiff for taking a subjudice matter to third party for enforcement of this Court s order. It is not permissible for the party to the pending proceeding to seek help of third party for enforcement of Court s order. The order which passed today disposing of suo motu contempt petition would show that on 6th September, 2002 when the film "Ek Chhotisi Love Story" was screened in some of theatres in Mumbai, Shiv Sainiks obstructed the screening of the film and caused damage to cinema halls and theatres. It was not disputed that immediately after the order was passed on 5th September, 2002, the appellant met Shiv Sena Chief. Armed with the judicial order, the litigant cannot be permitted to take such order to streets for enforcement. By her conduct, the plaintiff has disentitled herself to the grant of discretionary relief. Moreover it appears that the plaintiff also represented the Ministry for Information and Broadcasting to exercise the power under Section 6 of Cinematograph Act, 1952, by informing that theHigh Court has accepted her case that she has been defamed. Based on that Ministry of Information and Broadcasting issued notice under Section 5-E of Cinematograph Act, 1952, to the 1st defendant Shashilal Nair on September 10, 2002, as to why certificate granted to the film should not be suspended until the High Court disposed of the appeal. The appellant-plaintiff, thus, abused the process of this Court by taking up the pending matter to third person and the Ministry of Information and Broadcasting. Surprisingly she never moved this Court for appropriate order and direction if any act was done by the defendants in defiance of Court s order or there was any breach of this Court s order dated 5th September, 2002. In the circumstances, Court is satisfied that it need not go further into merits of the appeal as the appellant had disentitled herself from grant of any relief in the appeal arising out of discretionary order passed by the Single Judge of this Court.

       Torts - Scope of - Vulgar, indecent, objectionable scenes opposed - An such scenes were filmed on double - In the knowledge of main actress - Whether a case of malice or falsehood is made out - Such scenes were already made on story board - Actress was well aware of such scenes to be filmed on double - Now after release of film it cannot be said that she was kept in dark - No case of tort could be proved. - In so far the tort of injurious or malicious falsehood is concerned, this tort relates to those statements which are false but not defamatory and which do not constitute either slander of goods or slander of title. To maintain a case a malicious falsehood it must be held out that the statement was false. In the instant case what is sought to be contended is that the scenes involving the film artist would result in an action of malicious injurious falsehood or malicious falsehood by associating the plaintiff with the scenes which she had not enacted. It will be difficult to appreciate on the fact of this case that the defendant No. 1 is liable for malicious falsehood. The plaintiff was prima facie aware as earlier held and that the scenes formed part of the story board have been enacted by a double and consequently it cannot be said that in the present case the plaintiff has been able to establish a case of malicious falsehood. Now whether the plaintiff s right to privacy has been invaded. Admittedly the scenes of which objection is taken do not involve the plaintiff s presence. Even otherwise in the Law of Torts by John G. Fleming in the Chapter Right of Privacy, it is pointed out that perhaps the closest affinity to some aspects of the right of privacy is found in the law of defamation. Violation of Privacy has not so far, at least under that name, received explicit recognition as a tort by British Courts. For one thing, the traditional approach has been to formulate tort liability in terms of reprehensible conduct rather than of specified interests entitled to protection. For another, British Courts have been content to grope forward cautiously along the grooves of established legal concepts, like nuisance and libel, rather than make a bold commitment to an entirely new head of liability. It is no doubt true that American Courts have taken different view but considering the law of Tort it is the English common law that is followed in this country. This would follow from Article 372 (1) of the Constitution. The common law is existing law. The law applied by English Courts to common law is normally followed on most occasions by Courts in this country unless they depart from the law. Even otherwise once the Court has come to the conclusion that tort or defamation has not been proved it will be difficult to hold that there is an invasion of plaintiff s right to privacy.

       Civil Procedure Code, 1908 - Order XXXIX, Rule 3 - Enforcement of interim injunction. - Where ad interim order passed in favour of plaintiff not complied with by defendants and plaintiff taken no steps in moving Court for appropriate order and direction then plaintiff not entitled to grant of discretionary relief.

       Torts - Allegedly vulger, obscene, nude films shot on double - In knowledge of main actress - Censor Board passed them taking as part of film and not so objectionable - Right of privacy not disturbed - Plaintiff is not present in any such scenes - Tort not proved - No proof of invasion on right of privacy either. - Whether the plaintiff s right to privacy has been invaded. Admittedly the scenes of which objection is taken do not involve the plaintiff s presence. Even otherwise in the Law of Torts by John G. Fleming in the Chapter Right of privacy, it is pointed out that perhaps the closest affinity to some aspects of the right of privacy is found in the law of defamation. Violation of Privacy has not so far, at least under that name, received explicit recognition as a tort by British Courts. For one thing, the traditional approach has been to formulate tort liability in terms of reprehensible conduct rather than of specified interests entitled of protection. For another, British Courts have been content to grope forward cautiously along the grooves of established legal concepts, like nuisance and libel, rather than make a bold commitment to an entirely new head of liability. It is no doubt true that American Courts have taken different view but considering the Law of Tort it is the English common law that is followed in this country. This would follow from Article 372 (1) of the Constitution. The common law is existing law. The law applied by English Courts to common law is normally followed on most occasions by Courts in this country unless they depart from the law. Even otherwise once this Court has come to the conclusion that tort or defamation has not been proved it will be difficult to hold that there is an invasion of plaintiff s right to privac