The main legal point established in the judgment is the requirement for a prima facie case, balance of convenience, and likelihood of irreparable loss in granting interlocutory injunctions.

B. N. CHATURVEDI, J.

( 1 ) INSTANT appeal arises out of an order dated 3. 8. 2006 of learned Additional District Judge, whereby she, while disposing of an application under Order XXXIX Rules 1 and 2 CPC and another application under Order XXXIX Rule 4 CPC, made by appellant and respondent no. 1 respectively, vacated the ex parte ad interim injunction granted earlier in favour of the appellant.

( 2 ) MATERIAL facts as set out in the plaint unfold that the appellant acquired copyright, for consideration, in literary, dramatic, musical works and sound recording of serveral cinematograph films, including films "aksar" and "kucch TO HAT, under separate deeds of assignment. The appellant also produced a sound recording under the title "maiya rani" (MATA KI BHENT ). By virtue of being assignee of the sound recordings comprising the songs (musical/literary works) of the films "aksar" and "kucch TO HAT, and also being producer of sound recording under the title "maiyya RANI" (MATA KI BHENT) the appellant claims copyright ownership in the said sound recordings as well as in the musical/literary works embodied therein. The copyright, particularly in musical works in the sound recordings, is stated to be valid and subsisting in favour of the appellant and, thus, they are pleaded to have exclusive rights, inter alia, to re-produce the said musical/literary works in any form and to make sound recordings embodying the same.

( 3 ) THE respondent No. l, which is engaged in the business of production, manufacture and sale of sound recordings, etc. is alleged to have infringed the appellant's said copyright by making, producing and marketing the sound recordings containing, inter alia, the musical works of the appellant-company without a valid licence, consent, permission or assignment. The appellant has come across a video compact disc (VCD) under the title

"kailash KE RAJA EK BAAR aaja. . . . . . . . . . . AAJA", picturised by the respondent No. l, infringing appellant's copyright in the musical works/tunes/tracks from the films "aksar" (JHALAK DIKHLA JA) and "kucch TO HAI" (DIL DING DONG) and sound recording under the title "maiyya rani" (MAIN PARDESHI HOON ). It is complained that the respondent No. l by reproducing and distributing the musical works of the appellant is violating its copyright and thereby causing tremendous loss to it.

( 4 ) TO form a prima facie view on alleged infringement of appellant's copyright, particularly in musical works, as complained of, the learned Additional District Judge, at the time of hearing on grant of ex parte ad interim injunction, allowed playing of musical tune of the title song "kailash KE RAJA EK baar AAJA. . . . . . . . . . . AAJA" from the audio cassette of respondent No. 1 and cassette of the film song "jhalak DIKHLA JA" from film "aksar" and to justify grant of ex parte ad interim injunction, she proceeded to observe thus:

". . . . . on hearing the two cassettes, I came to the conclusion that on hearing the sound recording of the defendant no. l of the title song No. 1, it appeared as if one was hearing the music of the film song of the plaintiff ' Jhalak Dikhla ja' of the film 'aksar',. e. , despite the lyrics being different in that of the plaintiff song and that of the defendant, the musical tune of both the questioned songs of the defendant and of the plaintiff appeared to be the same. It appeared as if the composition of bhajan of defendant was being sung on the same musical tune as that of the plaintiffs film Aksar on the song ' Jhalak dikhla Ja'. "

( 5 ) THE learned Additional District Judge continued to hold the same prima facie view on infringement count even after the respondent No. l had filed their written statement/reply and had the opportunity of making their oral submissions. Noting observations in para 46 of the decision in

"r. G. Anand Vs. M/s. Delux Films and others", (1978) 4ssc 118 and relying on her impression which she gathered after hearing the musical tune of song No. 1