Petition Disposed of

D.N. Patel, J.—Rule. Learned Counsel Mr. A.R. Majmudar waives service of notice of Rule on behalf of Respondent No. 1.

2. This Appeal from order has been preferred against the order dated 24.12.2007 passed by learned in-charge District Judge, Vadodara below Exh-5 application in Regular Civil Suit No. 44 of 2007, whereby without giving notice to defendants, ex-parte, ad-interim relief, has been granted in favour of the plaintiff, in terms of Paras 29(a) and 29(b) of injunction application-Exh-5 application, preferred in the suit. These prayers which are granted by ex-parte order, read as under:

“29(a) pending hearing and final disposal of this suit, the defendants by themselves, their directors, servants, agents and distributors/exhibitors be restrained by an order of this Hon’ble Court from infringing the plaintiffs’ copyright in the artistic work “Bal Hanuman” registering under No. A-57127/99, in any manner whatsoever and by reproducing the same or substantial part thereof in any material form or by incorporating the plaintiffs’ said artistic work or any substantial part thereof or any reproduction thereof in a cinematograph film or by communicating the plaintiffs’ artistic work or any substantial part thereof or a reproduction thereof to the public or by exhibiting, distributing, broadcasting, publishing, screening or communicating the cinematograph film titled “Hanuman Returns” or “Return of Hanuman” or in any other manner whatsoever;

(b) pending hearing and disposal of this suit, the defendants by themselves, their directors, servants, agents and distributors/exhibitors be restrained by an order of injuction of this Hon’ble Court from using the character “Bal Hanuman” shown in Annexure ‘A’ to the plaint or any other character visually similar thereto in cinematograph film or any advertisement of the said cinematograph film or from exhibiting, distributing, broadcasting, publishing or communicating the said cinematograph film so as to pass off or enable others to pass off the said cinematograph film or advertisement thereof as the cinematograph film having the plaintiffs’ character of “Bal Hanuman” or in any other manner whatsoever.”

Against grant of these prayers, original defendant No. 1 has preferred this Appeal from Order.

3. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, the order dated 24.12.2007 passed by learned In-charge District Judge, Vadodara below Exh-5 application in Regular Civil Suit No. 44 of 2007 deserves to be quashed and set aside, mainly for the following facts and reasons:

(i) It appears from the facts of the case that the present appellant is original defendant No. 1, against whom, the Respondent No. 1 (original plaintiff) has instituted Regular Civil Suit No. 44 of 2007 mainly for infringement of copyright. A copyright claimed by present Respondent No. 1 (original plaintiff) is upon artistic work “Bal Hanuman”, which is presented at Mark 4/3 and 4/4, in the suit, whereas the present appellant (original Defendant No. 1) has already released a film “Return of Hanuman”, which is a fiction film and as per original plaintiff, there is a breach of infringement of the copyright. Film namely “Return of Hanuman” was going to be released on 28.12.2007 and the suit was instituted on 24.12.2007 i.e. 4 days prior to the date of release of the film and without issuance of Notice to the appellant (defendant No. 1), ex-parte ad-interim relief has been granted by the trial Court.

(ii) It appears from the facts of the case that the original defendants have started giving their advertisement in local daily newspaper from 15.08.2007. Learned Counsel for the appellant (original defendant No. 1) has pointed out that on 15.08.2007, in local daily newspapers an advertisement was given that the film is going to be released in the month of November, 2007. Widely, openly, extensively and publicly the advertisements were given frequently, from August, 2007 but no sui