A plaintiff cannot abandon part of the claims in an appeal against an order of injunction to justify the order of injunction passed in a suit which was prima facie undervalued.

BHASKAR BHATTACHARYA, J. :- This first miscellaneous appeal is at the instance of defendants in a suit for declaration and permanent injunction and is directed against Order dated March 14, 2005 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 253 of 2005 thereby disposing of three applications, one under Order 39, Rules 1 and 2 read with Section 151 of the Code for prohibitory injunction filed by the plaintiff, the second one, also filed by the plaintiff, under Section 151 of the Code of Civil Procedure praying for mandatory order of injunction and the last one, under Order 39, Rule 4 of the Code of Civil Procedure filed by the present appellants.

2. The plaintiff/respondent filed the aforesaid suit being Title Suit No. 253 of 2005 in the City Civil Court at Calcutta thereby praying for the following relief :-

(i) Decree thereby declaring that the defendants have no right to change the position and frequency of the channel of the plaintiff i.e. "ATN Kolkata" being transmitted by the defendants in terms of the agreement dated November 5, 2002, from S-2 Band to any other Band;

(ii) Decree thereby declaring that the defendants their men and/or agent have no right to disconnect the connectivity of the plaintiff"s cable channel "ATN Kolkata";

(iii) Decree for declaration that the defendants are not entitled to claim a sum of Rs. 24,00,000/- per annum towards promotional charges without assigning any reasonable and concrete reason;

(iv) Permanent injunction thereby restraining the defendants their men and/or agent from changing the position and frequency of the channel of the plaintiff "ATN Kolkata" being transmitted by the defendants;

(v) Permanent injunction thereby restraining the defendants their men and/or agent from disconnecting the connectivity of the plaintiff"s cable channel "ATN Kolkata" being transmitted by the defendants;

(vi) Permanent injunction restraining the defendants from arbitrarily claiming Rs. 24,00,000/- per annum as promotional charges without assigning any reasonable and concrete reason;

(vii) Further injunctions;

(viii) Receiver;

(ix) Damages;

(x) Costs and incidentals to the suit;

(xi) Such further relief or reliefs as to this learned Court may seem fit and proper;

3. The case made out by the plaintiffs was that it was telecasting and marketing one of the most popular Bengali Channels, namely, "ATN Kolkata". The defendant No. 1 is a Master Service Operator (MSO) who after installing satellite antenna transmits the channels to the viewers through local cable operators. According to the plaintiff, there was an agreement between the parties by which the defendants agreed to provide space to transmit the channel of the plaintiff as S. 2 frequency at 112.3 MHz. in its network with effect from December 31, 2002 for continuous 24 hours and the said agreement is still subsisting. The transmission, according to the plaintiff, should be through the plaintiffs" equipments from their control room but in case there was any problem with the equipments of the plaintiff, the defendants should provide transmission through their equipments and control room The plaintiff claimed that the defendants further agreed that the frequency and position of the channel should not be changed and at a latter time, if due to exigency beyond the control of the defendants, the position or frequency of the plaintiff"s channel is required to be changed, the same should not be higher than one provided initially to the channel. It was further agreed that three months prior notice should be given to the plaintiff by the defendants, in case, they intended to change the frequency or position of the plaintiffs channel and the agreed amount was to be paid by the plaintiff to the defendants towards transmission fees as mentioned in the agreement.

4. The plaintiff alleged that in spite of the fact that the plaintiff complied with all the agreed terms, the defendants illegally demanded a sum of Rs. 24 lakh per annum