final written argument seeking complete restraint on release of 'sathyananda' - 12-sep-2011

7/30/2019 Final Written Argument Seeking Complete Restraint on Release of 'Sathyananda' - 12-Sep-2011

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IN THE COURT OF THE CITY CIVIL JUDGE AT BANGALORE

CIVIL ORIGINAL JURISDICTION

ORIGINAL SUIT No. 2527 OF 2011 (DEFAMATION)

Between:

Nithyananda Swamy Plaintiff

And

Madan Patel And Anr. Defendants

WRITTEN ARGUMENT

1. It is respectfully submitted that the defendants have failed tonote the fundamental difference between the burden of proof

imposed in a criminal trial and the standard of proof

applicable to a civil trial. In this regard, the ratio of the

following case may be noted:

Title:Macherlappa and Sons vs. Government of Andhra

Date of Decision: 07-Nov-1957

Citation: 1958 (9) SALES TAX CASES 156 (AP)

High Court of Andhra Pradesh

17...In Ramanamma v. Appala Narasayya (62 M.L.J.

230), a criminal complaint and a suit for damages for

defamation were filed. The suit was dismissed. The

judgment of the Civil Court was sought to be admitted as

evidence in the criminal case. It was the converse of the

present case. The Court held against admissibility

observing:-

"Can we not have the Civil Court trying over again a

matter which has been decided by a Court of competent


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jurisdiction and coming to a different conclusion ? The

truth is that, although the civil suit and the prosecution

may be based on exactly the same cause of action, the

parties are, strictly speaking, not the same, the burden

of proof is differently placed and different considerations

may come in. The result may, therefore, be a conflict in

decision. For instance, A is tried for murdering B, but

acquitted, because a confessional statement by him is,

in a criminal trial, inadmissible in evidence. C, B's

widow, sues him for damages for the murder and gets a

decree, the confessional statement being admissible in a

civil suit. In the matter of defamation again, there is a

good deal of difference between a suit for damages and

a criminal prosecution. The prosecution is governed by

the provisions of the Indian Penal Code, the suit by the

English law of slander and libel. A defence which is

open to the accused in the prosecution is not open to him

as the defendant in the suit. The question of special

damages may arise in the suit, but cannot arise in the

prosecution

18We need hardly emphasise the fundamental

differences in the very object, approach and procedure

relating to civil and criminal actions. The standard of

proof for imposing a liability, it is well known, varies

within wide limits as the action is criminal, civil or fiscal.

While in a civil suit a defendant can be made liable on

probabilities or the action decided on a mere

consideration of the burden of proof in the absence of

other evidence, no accused can be convicted on such

uncertain grounds. The principle governing criminal

justice that the State would rather allow a score of real


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offenders to escape than see a single innocent man

convicted, can hardly find an echo in civil litigation

2 Similarly, a five-judge Constitution Bench of the HonbleSupreme Court has stressed on the paramount difference

between a civil proceeding and a criminal proceeding in

the case of Iqbal Singh Marwah vs. Meenakshi Marwah

[2005 (4) Supreme Court Cases 370]. The Court held

that:

24. Coming to the last contention that an effort should

be made to avoid conflict of findings between the civil

and criminal Courts, it is necessary to point out that

the standard of proof required in the two proceedings

are entirely different. Civil cases are decided on the

basis of preponderance of evidence while in acriminal case the burden lies on the prosecution and

proof beyond reasonable doubt has to be given

3 It is most respectfully submitted that the defendants havefailed to comprehend the critical distinction between a

civil trial and a criminal trial and on the burden of proof

applicable to a civil trial.

4 Further, by offering a vague and an evasive denial, thedefendant No.1 is deemed to have admitted the allegation

of facts made by the plaintiff as contained in the

numerous documents of a public nature annexed to the

plaint. The plaintiff has verified and stated on oath, the

truth of the existence of the public documents containing:

a)statements uttered by the defendant No.1 andb)the analysis presented by the publication itself and

intended to serve as an advertisement and publicity


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for the film Sathyananda produced and directed by

defendant No.1:

5 In an interview given by the defendant No.1 to themagazine SuperGoodMovies.Com, the following

summation appears:

ANNEXURE No.5

Page No: 30 of the plaint

The strength of film maker, politician Madan Patel is

quite good before the controversial film Satyananda

- a film on the misdeeds of God man Nithyananda.

6 Vijaya Karnataka is the most read newspaper in the Stateof Karnataka and holds a daily circulation of 5.77 lakhsand a daily readership of 35 lakhs. The following portion

of the news report from Vijaya Karnataka may be noted:

ANNEXURE No.13

TRANSLATION OF: FALSE GAME OF SATHYANANDA

VIJAYA KARNATAKA-NEWSPAPER (KANNADA)

Dated 11-Mar-2011, PAGE-3

Bangalore Edition


But, Patel is having a group of fourteen advocates

and telling 'action- cut' for this film. The reason for

that is the story of this film and character in the film.

Misdeeds and prostitution which take place in the

Ashram, are going to be reflected in this film. As his


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disciples are there all over the world, this is a film at

the international level in that sense

7 Udaya Vani, a Kannada newspaper with a dailycirculation of 2.5 lakhs published a news report that is

relied upon to the following extent:

ANNEXURE No.14

TRANSLATION OF: SMILING KILLER

UDAYAVANI NEWSPAPER (KANNADA)

Bangalore Edition

SMILING KILLER

PageNo: 48 of the plaint

Some preparation is a must for a film to be produced

on the basis of real facts. Especially when a film is

being produced on a saffron-clad person, who has

become famous in the world, excessive training must

be there for it.

This is especially a film on a Swamiji. That Swamiji

will be smiling always under any circumstance. As

such there is smile always on his face

8 Kannada Prabha, a Kannada daily newspaper with acirculation of 1.77 Lakh copies everyday published a

news report which is also relied upon and the same

states that:

ANNEXURE No.15

TRANSLATION OF: MADANS RAINBOW


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KANNADA PRABHA NEWSPAPER (KANNADA)

11Mar-2011; Supplement Page 3;

Bangalore Edition

Madans Rainbow

Page No: 51 of plaint

It is special that Madan Patel, who often makes films

to show his juiciness, is going to show Nithyananda's

Leelas.

He is making a movie by name Sathyananda based

on the Nithyananda raasaleela scandal. Ravi Chetan

is the hero of the film. He says " When the

Nithyananda scandal was exposed, a thought of

making a film based on this came to my mind. But,

I

Page No: 52 of plaint

Madan says 'In case Nithyananda gives trouble

saying that his story is being made as a film and

goes to seek legal help, then it confirms that he has

committed the mistake. He spoke like a pukka

advocate having said so

9 Praja Vani, the second most widely read Kannada dailynewspaper with a daily circulation of 3.6 lakhs alsopublished a news report concerning the film

Sathyananda and the first defendant. The same is relied

upon and, in pertinent part, the news report says that:

ANNEXURE No.16


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TRANSLATION OF: SATHYANANDA: PLAY STARTS

PRAJAVANI NEWSPAPER (KANNADA)

11-Mar-2011; Film Entertainment Page No: 2

Bangalore Edition

SATHYANANDA: PLAY STARTS...


Madan who is making Sathyananda film resembling

the life of controversialSwamiji was in high spirits

10 Further, Annexure No.4 is a copy of a banner placed bythe defendant No.1 in the inauguration function

(Muhurat) of his film, Sathyananda at Freedom Park,

Bangalore on 06-Mar-2011. It may be noted that Freedom

Park is a public garden and park situated in the heart of

the city of Bangalore and any person is free to walk in

and walk out of this public place. On 06-Mar-2011,

throughout the inauguration function of the film, the

defendant No.1 got a promotional banner displayed in the

Freedom Park. Video and photographs from that venue

stunningly establish that during the entire inauguration,

the photographs of plaintiff were prominently displayed in

the invitation banner. As may be seen from Annexure

No.4, the photograph of plaintiff has been displayed

prominently on the banner of the film Sathyanandaitself. As such, by launching their film itself in the name

of the plaintiff, the plaintiffs have thereafter chosen to

defraud this Honble Court as well by swearing on oath to

this Honble Court that they do not even know who is

Nithyananda Swamy. The conduct of the defendants


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tantamounts to the grossest form of perjury, disregard

and contempt of this Honble Court.

11 Further, as established by Annexure No.2 which is avideograph of the interview of defendant No.2 conducted

by media persons during the inauguration of the film

Sathyananda at the Freedom Park at Bangalore on 06-

Mar-2011, no manner of doubt can be entertained on the

true intent and purpose behind the making of the filmSathyananda. In his interview to the media at Freedom

Park on 06-Mar-2011, the defendant No.2 who is the lead

actor in the film made these statements:

ANNEXURE No.2 and 3

TRANSLATION OF MEDIA PRESENTATION (FROM

KANNADA)

MEDIA PRESENTATION BY DEFENDANT No.2, SRI

RAVI CHETAN, AT FREEDOM PARK, BANGALORE

Page No: 26 of the plaint:

Question: How have you prepared for this role?

Answer: To do homework for this is very important.

OS I did some homework for this that smile, that

style, mannerism, how to talk, how he delivers the

discourses. Some friends and writers went to

ashram, studied and came back and told me. Our

director also helped me. Director told, What is to be

done legallyThey will bring a stay orderFor that

not to happen, what all needs to be done, we built a

legally enforceable fort and started doing this.


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And over the internet, I found out how he will be, and

practiced at home

Page No:27 of the plaint

As you all know , this Swamiji Nithyananda , you

may be knowing only 20% of it. But if you say it is

100%, it is not so, it is at least 50% let us say. What

is going on, what has happened, we are trying to

keep that in front of the people. Yes, Nithyananda sex

scandal and

12 Further, the plaintiffs learnt subsequent to the filing ofthe suit that the defendant No.1 had also given an

interview to a television news channel, tv9, which was

telecast by that channel on 22-Dec-2010 in a programtitled Filmy Funda. The content of the said interview by

defendant No.1 is wholly consistent and fully supports all

the annexures originally filed with the plaint. Accordingly,

a copy of the video was furnished by the plaintiff to this

Honble Court on 27-Apr-2011 by the filing of an

Interlocutory Application No.6. The interview of the

defendant No.1 is in Kannada in the said video. Upon

translation, the same reads as under:

Madan Patel: I might get pressured from the higher

authorities; they might ask me not to do the cinema.

But in future, people might question me, Though you

knew about the issues of the society, why didnt you

do it? So whatever the pressure might be, I am

definitely going to do, this Satyananda cinema a

true story of Nithyananda. Definitely, I will do. I am

going to tell everything about him to the public. So in

future, let the people awaken to issues like this, and


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not support people like him. The injustice that he did

and the cheating that he did, I am going to show this

directly in the movie.

Madan Patel: I am looking for a suitable person for

that. He should be very similar to Nithyananda.

Anyone for that role, they can come and meet me

directly. That height, and the cunning smile, and

if they are suitable for this, I will take them. And,whoever is related to that, I will take them.

13 It may be noted that tv9 is the most popular televisionchannel in Karnataka and is amongst the most viewed

news channels in India, even catapulting to the status of

the most watched news television in India for a brief

period in 2010. In the aforesaid interview aired by tv9 on

22-Dec-2010, the defendant No.1 has unmistakably

expressed his desire to make a film on Nithyananda

Swamy, the plaintiff herein.

14 Further, on 02-Sep-2011, the plaintiff has presented tothis Honble Court through his counsel, copy of facebook

entry belonging to defendant No.1. Facebook.com is a

website where any person is free to open an account

without paying anything and to write whatever he wishes

on his page. Further, any person who holds an account

on facebook may befriend any other person who also

holds an account with facebook. Any person may

converse publicly with another friend on facebook.

Accordingly, the defendant No.1, Madan Patel holds an

account in facebook with the name MADAN PATEL. His

facebook page is located at:

www.facebook.com/madanpatel.
http://www.facebook.com/madanpatelhttp://www.facebook.com/madanpatelhttp://www.facebook.com/madanpatel


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15 The plaintiff learnt about the facebook page of thedefendant No.1 on 31-Aug-2011 and was utterly shocked

to read what the defendant No.1 had posted on his own

facebook page (www.facebook.com/madanpatel) on 30-

Dec-2010. The defendant No.1 had put up a photo lifted

from the internet wherein 3 women of chinese descent are

scantily clad and seated around a bathtub and in the

centre of that photo, a picture of plaintiff, Nithyananda

Swamy has been attached with the tag THE GOD BAD

MAN.

16 The aforesaid photo contains a description in Kannadathat reads as under:

HINDOO SAMAAJAKKE MATTU BHAKTARIGE

NAMBIKE DHROHAVESAGIDA KAMISWAMI

NITHYANANDANINDA ANYAYA,

ATHYACHAARAKKOLAGAADA HAAGU HANA, AASTHI,

MAANA, SHEELA KALEDUKONDAVARU SAMPARKISI:

MADAN PATEL, NO.173, IST FLOOR, 6TH CROSS,

GANDHINAGARA, BANGALORE 560 009

17 When translated into English, the said description readsas under:

WHOEVER HAS BEEN CHEATED, RAPED OR HAS

LOST MONEY, PROPERTY, HONOUR, CHASTITY DUE

TO KAMISWAMI NITHYANANDA WHO HAS BETRAYED

HINDU SOCIETY AND DEVOTEES CONTACT MADANPATEL, NO.173, IST FLOOR, 6TH CROSS,

GANDHINAGARA, BANGALORE 560 009.

18 Again, the aforesaid photo contains an additionaldescription as under:
http://www.facebook.com/madanpatelhttp://www.facebook.com/madanpatelhttp://www.facebook.com/madanpatelhttp://www.facebook.com/madanpatel


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The first news paper ad. Thanks to Achu Ads for the

design. Launching SATHYANANDA a true story of

Nithyananda feature film in Jan 11.

19 Further, the defendant No.1 has responded to hisnumerous friends who have wished him well and success

for the proposed film Sathyananda and all of those

words are contained in the additional documents

furnished to this Honble Court on 02-Sep-2011.

20 The only response offered by defendant No.1 to theaforesaid material is as under:

WRITTEN STATEMENT filed by defendant No.1 on 07-

Jul-2011. Para 5:

It is submitted that the documents such as website

reports, newspaper reports, cannot be the basis for

granting injunctive relives. None of the news paper

reports and the website reports can be believed and

should not be believed in as much as they are the

outcome of an understanding and conception of a

particular reporter/media entity

21 Further, the defendant No.1 has provided no otherresponse to the video, photographs of the banner of his

own film, website reports, newspaper reports, his own

facebook page.

22 In the context of the fact that the defendant No.1 has noteven bothered to specifically deny any of the allegations of

fact made by the plaintiff in pursuance of the aforesaid

material appended to the plaint, the defendant No.1

should be held to have admitted to the truth of what is

contained in the aforesaid materialsvideo, photographs,


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website reports, newspaper reports, facebook page of

defendant No.1.

23 It is too well established that the Code of Civil Procedureprescribes its own set of rules and procedures for

determining and adjudicating the substantive rights of

parties whose disputes are agitated in a proceeding to

which the Code applies. Accordingly, the counsel for the

plaintiff relies on the following judgments which set outcomprehensively, the law squarely applicable to the facts

before this Honble Court.

Case No.1

Title: Asha Kapoor vs Hari Om Sharda

Date of Decision: 05-Aug-2010

Citation: 171 (2010) DELHI LAW TIMES 743

Court: Delhi High Court

1.. This petition under Article 227 of the

Constitution of India has been filed against impugnedjudgment dated 6th April, 2010, passed by

Additional Rent Control Tribunal (for short as

Tribunal) Karkardooma Courts, Delhi allowing the

eviction petition of the landlord-respondent herein,

under Section 14 (1) (h) of Delhi Control Act 1958 (for

short as Act). Petitioner has also prayed to confirm

the judgment dated 30th March, 2009 passed by

Additional Rent Controller (for short as Controller)

Delhi, vide which eviction petition of the respondent,

under Section 14 (1) (h) of the Act was dismissed.


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2Brief facts are that, respondent filed an Eviction

Petition under Section 14 (1) (a), (j) and (h) of the Act

against petitioner, inter alia on the allegations that he

is landlord/owner of property bearing No. 1/6595,

East Rohtas Nagar, Ludhiana Building, Shahdara,

Delhi. Petitioner is a tenant in respect of two rooms,

kitchen, open verandah and open courtyard at a

monthly rent of Rs.100/-..

13In para 18(a) (iii) of eviction petition, there

appears to be a typographical error with regard to

mentioning of this para as 18(a) (iii). In fact, this para

should be read as para 18(a) (IV). Averments made in

this para are:

That the respondent has also acquired vacant and

physical possession of the premises bearing No. C-

91, IIIrd Floor, West Gorakh Park Ext., Shahdara,

Delhi, and is not residing in the premises in

question.

14Petitioner/tenant in reply to this para in her

written statement has stated: The contents of para

18(a)(iv) of the petition under reply are not only

mischievous, motivated and false the same are

untenable and are thus vehemently denied. Each and

every averment in the para under reply is hereby

individually adverted to and specifically denied. It is

pertinent to mention here that the Respondent is still

occupying and /or residing at the suit premises with

her two married sons and her grand children. The

petitioner is put to strict proof of any allegations to

thecontrary.


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15Thus, as per written statement of petitioner it is

apparent that, she has nowhere specifically denied

that she has not acquired vacant and physical

possession of premises No. C-91, IIIrd Floor, West

Gorakh Park Ext., Shahadra, Delhi.

16Order VIII Rules 3, 4 and 5 of the Code of Civil

Procedure (for short as Code) read as under:

3. Denial to be specificit shall not be sufficient for

a defendant in his written statement to deny

generally the ground alleged by the plaintiff, but the

defendant must deal specifically with each allegation

of fact of which he does not admit the truth, except

damages.

4. Evasive denialwhere a defendant denies an

allegation of fact in the plaint, he must not do so

evasively, but answer the point of substance. Thus, if

it is alleged that he received a certain sum of money,

it shall not be sufficient to deny that he received that

particular amount, but he must deny that he received

that sum or any part thereof, or else set out how

much he received. And if an allegation is made with

diverse circumstances, it shall not be sufficient to

deny it along with those circumstances.

5. Specific denial[(1)] Every allegation of fact in the

plaint, if not denied specifically or by necessary

implication, or stated to be not admitted in the

pleading of the defendant, shall be taken to be

admitted except as against a person under disability;


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Provided that the Court may in its discretion require

any fact so admitted to be proved otherwise than by

such admission.

17The effect of Order 8 Rule 3 read along with

Rules 4 and 5 of the Code is that, defendant is bound

to deal specifically with each allegation of fact not

admitted by him; he must either deny or state

definitely that the substance of each allegation is notadmitted. The main allegations which form the

foundation of the suit should be dealt with in that

way and expressly denied. Facts not specifically

dealt with will be taken to be admitted under Order 8

Rule 5 of the Code.

18Order 8 Rule 5 of the Code is known as doctrine

of non-traverse which means that where a material

averment is passed over without specific denial, it is

taken to be admitted. The rule says that any

allegation of fact must either be denied specifically or

by necessary implication or there should be a

statement that the fact is not admitted. If the plea is

not taken in that manner, then the allegation should

taken to be admitted.

19.Supreme Court in M. Venkataraman Hebbar

(D) By L.Rs. v. M. Rajgopal Hebbar and Ors., V

(2007) SLT 395=III (2007) CLT 49 (SC)=2007 (5)

SCALE 598, observed:

Thus, if a plea which was relevant for the purpose of

maintaining a suit had not been specifically

traversed, the Court was entitled to draw an

inference that the same had been admitted. A fact


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admitted in terms of Section 58 of the Evidence Act

need not be proved.

20...In the written statement of the petitioner, there is

no specific denial to the fact that petitioner has

acquired vacant and peaceful possession of the

premises bearing No. C-91, IIIrd Floor, East Gorakh

Park Ext., Shahdara, Delhi.

23.(v)..Turning to the case in hand, in the written

statement, there was no denial of the fact of

acquisition of the property

24Thus, after going through the judgment of the

Tribunal and in view of the fact that there is no

specific denial on behalf of the petitioner with regardto acquiring vacant peaceful possession of premises

bearing No. C-91, IIIrd Floor, East Gorakh Park Ext.,

Shahdara, Delhi, no infirmity or ambiguity can be

found in the impugned order of the Tribunal.

25.As such present petition is hereby dismissed.

24 Case No: 02Title: Smt. Sonakka Gopalagowda Shanthaveri and others

vs U.R. Anantha Murthy

Date of Decision: 02 Dec 1987

Citation: AIR 1988 Karnataka 225

JUDGEMENT:- This appeal is directed against the

interlocutory order made by the learned Civil Judge

in O.S. No. 4029 of 1987 dismissing the application

filed by the plaintiffs (who are appellants herein and


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who are hereinafter referred to as the plaintiffs)

under the provisions of O.39 Rr.1 and 2 of C.P.C.(in

short the Code).

2. Interim reliefs sought for by the plaintiffs in the

suit were to restrain defendants-1, 2 and 3 from re-

publishing the Kannada novel written by defendant-1

under the title "Avasthe" and to restrain defendants -

4 to 8 from exhibiting and screening the picture basedon the aforesaid novel going by the name "Avasthe"

3. According to the plaintiffs, late Gopala Gowda had

led a very clean life and was an affectionate

husband to the 1st plaintiff and never violated the

sanctity of the matrimonial lifeThe 1st defendant

who had admitted in the written statement that he

was a close associate of late Gopala Gowda authored

a novel, as noticed earlier in the year 1978 called

"Avasthe" which has given rise to this dispute

between the parties. In that book according to the

plaintiffs, the 1st defendant had depicted this leader

of the socialist movement in not very edifying terms,

that he was shown as a person whose ideals were

very confused, that he did not have the courage of the

convictions to face life as it should have been faced;

that his personal life was not very clean in that he

had extra-marital relationship with more than one

woman other than his wife; that his treatment of hiswife was not on equal terms since she was found to

be intellectually incompatible to his outlook on life

and his ideals and she did not even care to meet

ordinary whims and requirements of her husband as

she was a miser with no inclination to spend any


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money for him. It cannot be disputed that the novel is

based on the life of late Gopala Gowda but

defendant-1 has taken the contention in his written

statement that the book is not a biography of late

Gopala Gowda. On the material on record there is a

prima facie case to show that the book is based on

the life of Gopala Gowda. Certain documents

produced before the Trial Court and which came into

existence before the suit was filed clearly show that

this book was based on the life of late Gopala

GowdaIn the plaint, the plaintiffs have referred to

as many as 10 specific incidents where the

characters mentioned in the book bear a close

resemblance to the events and incidents in the life of

Gopala Gowda and those of his family members.

6. So, from these averments which are also supported

by four affidavits of persons who were close to

Gopala Gowda, the point for consideration by the

Trial Court was whether the book prima facie is a

biography of Gopala Gowda or whether it was based

on the life of Gopala Gowda

11. It should be noticed at this stage that the

averments of the plaintiffs in the plaint both as

regards the book and the picture in question were

supported by the verbatim quotations from the novel

and also certain quotations from the dialogue in thepicture. Plaintiffs have quoted extensively from the

various portions in the book which have a bearing on

the character of Krishnappagowda both in his

political life and also in his personal life. A reference

to a couple of those passages which have been


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quoted verbatim from the book should be noticed at

this stage

13. So, on these allegations in the plaint duly

supported by uncontroverted passages from the novel

in question, the plaintiffs have based their cause of

action against the defendants for the various reliefs

claimed in the plaint as also for the interim reliefs.

14. The defence of Defendant-1 should be noticed at

this stage.that it is purely a work of art and fiction

and not a biography and any remote resemblance of

characters or persons in real life cannot be a ground

to say that it was intended to be the biography of

Gopala Gowda or was intended to sketch the

character of Gopala Gowda. According to him, the

book is pure fiction and nothing more and the

characters in the book are all fictitious characters

and there is no resemblance to the personal life of

Gopala Gowda or to any other person in real life; that

no reader will get the impression that the book was

meant to defame the members of the family of Gopala

Gowdathat any similarities of characters are only a

matter of coincidence and therefore the allegations of

defamation and character assassination are

unfounded and that these allegations are not made

by the members of the family of Gopalagowda

16. The defence of Defendant-8 who is the distributor

of the film in question is that whatever found in the

book is the responsibility of Defendant-1 and they

cannot be made a scapegoat for what he has written

in the book. In para 7 of the written statement, they


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have stated that 'this defendant is leaving the

allegations and counter allegations regarding the

contents of the novel' to be met by Defendant-1

17. On these pleadings of the parties and the

application filed by the plaintiffs and the counter

affidavits filed by the defendants opposing the grant

of interim relief, the trial Court framed the following

points for its consideration:

i) Whether there is a prima facie case in favour

of the plaintiffs;

ii) Whether the allegations made in the plaint

make out a case for defamation against the

defendants;

iii) Whether any irreparable injury would be

caused to the plaintiffs by the reprint of the

book as also by exhibiting the film in question;

iv) In whose favour the balance of convenience

lies.

18. The trial Court answered all these points against

the plaintiffs

19. On the question whether there was a prima facie

case against the defendants the trial Court posed

itself the following question:

Whether the suit (sic) is a biography of Gopala

Gowda ?

20. It found that there were only 2 or 3 similar

characters in the life of Gopala Gowda and of


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Krishnappa Gowda in the novelThe trial Court also

found that no material had been placed before it to

show that any of these characters found in the book

had any similarities with the persons in the real life

of Gopalagowda and his family

21. The trial Court relied on certain passages in

Halsbury's Laws of England and also on a couple of

other decisions to come to the conclusion that no rightthinking person would, after reading the book or

seeing the picture, come to the conclusion that the

plaintiffs would be held to ridicule or that a low

opinion about them could be formed. The trial Court

had also the benefit of viewing the picture and it was

of the view that the picture was produced in goodtaste and it contained many good artistic features.

But the trial Court did not discuss either cursorily or

in detail what exactly the scenes and the dialogues

in the film represented and in what way these scenes

and dialogues had no connection with the main

characters and events in the life of Gopala Gowda.

24. The limitations of this Court in a matter like this

while dealing with the interlocutory order of the trial

Court which had the benefit of going through the

novel as also viewing the film in question should be

noticed first. The law is very well settled. i.e., if the

trial Court has given a finding of fact on a properappreciation of the material on record, the pleadings,

etc. and it has applied the law correctly to the facts of

the case, it is not open to this Court to interfere with

that finding of the trial Court merely because it is

open to this Court to take a different view in the


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matter. So, the first consideration in this appeal is

whether the trial Court had come to proper

conclusions even on questions of facts.

25The trial Court made no effort to go into these

characters numbering more than 10 before coming to

the conclusion that the book is a pure work of art and

fiction and not based on the life of Gopala

GowdaWhat is more, the defendants have alsogone on record to say presumably with a view to

acquire publicity for the picture or publicity for

themselves that the novel is based on the life of

Gopala Gowda. In 'Times of India', dt. Nov. 14, 1986,

under the caption Kannada Film Letter - Politicians

And Cinema, there is a reference to the participationof Ministers. J.H. Patel and M.P. Prakash in the film

and their names figured in that news letter. The

news letter states that Sri J.H. Patel and Sri M.P.

Prakash had dabbed their faces with make-up to

feature in the movie based on the 1st defendant's

novel. It also states that "Krishna Mazadi, a forceful

short story writer and journalist, who wields the

megaphone for the film has already completed

shooting one schedule in Bangalore and is busy

shooting in Shimoga at present". Further it is said in

that letter that "The story is reportedly inspired on the

life of the veteran Socialist, Gopala Gowda, who had

a very powerful political career. Anant Nag plays

Krishnappa Gowda, Archana Vishwanath, daughter

of B.S. Vishwanath, who had lost the elections to

Gopala Gowda, ironically plays Krishnappa Gowda's

girl friend Gowri Deshpande. She makes her debut


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with this film. Other political leaders who feature in

this film include Sriyuths Chandre Gowda, B.K.

Chandrashekar. Abdul Nazir Sab and Rajvardhan".

In another publication called India Today (Current

events) dated 15-12-1986 under the caption

'Karnataka Screen Test' there is a reference to the

production of this picture. There also names of

politicians whose names had appeared in 'Times of

India' are found. Additionally it is stated that "The

film Avasthe (phase), the shooting of which was in

full swing last fortnight, is the brainchild of Director

Masadi who conceived of it two years ago. He said,

the idea of involving politicians was to give the film a

natural effect'; Patel, was once a close associate of

Gopala Gowda, the main character in the film, and so

readily agreed to associate himself with the project.

'Other Politicians soon followed.' Based on a novel by

noted Kannada writer U.R. Anantha Murthy, it

chronicles the life of Gopala Gowda, a socialist leader

of Shimoga District who played a considerable role in

the State's politics in the '50s and '60s." In another

article which appeared in Sunday 6-12 September

1987 under the caption 'personality' there is a writing

about Anant Nag who played the role of Krishnappa

Gowda. In that article there is a reference to the film

'Avasthe' and it is stated therein that the picture is

based on the life of Karnataka politicianGopalagowda. If any more proof is needed, if at all it

is indeed required, it is found in the article that

appeared in the Deccan Herald dated 11-9-1987

under the caption 'Idealism and Compromise in

Politics' It reads as under ?:


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"Awasthe, a Kannada film with a political theme,

which is to be released in the State next week, will go

down in the annals of Indian film history as a unique

event. It features seven politicians in important roles.

Among them are three Ministers (Mr. M.P. Prakash

Mr. J.H. Patel and Mr. Abdul Nazir Sab), one Member

of Legislative Council (Prof. B.K. Chandra Shekar),

two members of the Legislative Assembly (Mr. B.R.

Yavagal and Mr. Rajvandhan, Chief Whip of

Karnataka Assembly)."

Again in pages 3 and 4 (Pages 171 and 172 of the

record) of the article it is stated:

"The highly rated novel is supposed to have drawn its

material from the turbulent and ideologically

committed socialist leader the late Gopala Gowda

who hailed from Malnad. In the 60s he rose to be a

leader of great consequence in the political scene of

Karnataka. The peasant leader who waged a

relentless battle to live up to his uncompromising

honesty and ideals was the prototype for the hero of

the novel and was decidedly the inspiration for the

novelist.

Though the plot encompasses many events and

characters from the life of Gopala Gowda, the director

is averse to the idea of looking at the film as a true-

life biography of any individual. He said the central

character is portrayed as embodying the qualities

associated with a strong-willed idealist caught up in

a system which has a debilitating influence on his

ideology.


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Krishna Masadi said, the predicament of the

character and the sequences reflecting various stages

in his heroic struggle are portrayed in such a way

that they have a universal appeal and strong

contemporary relevance.

Awasthe presents a slice of political life through the

'existentialist protagonist' Krishnappa Gowda. Into

the plot are woven several contradictions in society -those between illusions and realist, profession and

practice, idealism and triviality."

Further in page 8 of this Article (Page 176 of the

record) there is a reference to the character Gowri

Deshpande. It says:

"It is an interesting coincidence that Archana

Viswanath, daughter of Viswanath who had lost to

Gopala Gowda in an Assembly election in 70's, is

making her acting debut (as the heroine) in the film.

26. These materials have come into existence at an

undisputed point of time, i.e., before this matter

reached the Court some time in the 3rd week of

September, 1987. Neither defendant-1 nor the other

defendants came forward with any disclaimer by

publishing in the press or by issuing notices to the

editors of various newspapers to say that their

assertion that this book was based on the life of

Gopala Gowda is not correct. But, only when the

matter was taken to the Court at the instance of the

plaintiffs, these defendants pleaded that the

characters in the book and the picture are fictitious

characters who have no resemblance to the life of


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Gopalagowda or to the persons who figured in his

life. In the circumstances, on a question of fact, the

trial Court gravely erred in coming to the conclusion

that the novel in question is not based on the life of

Gopala Gowda. It is not necessary to give a finding

on the prima facie nature of the case against the

defendants, that this book should be a biography of

the life of Gopalagowda. It is sufficient if the book is

based on certain important incidents and aspects in

the life of Gopalagowda and some of the characters

found in the novel have some connection with the

characters and personalities who had figured in the

real life of Gopalagowda. Therefore, it is open to this

Court even on a question of fact to come to the

conclusion that the trial Court gravely misdirected

itself by not noticing the unchallenged material on

record in coming to the conclusion that the book was

not based on the life of Gopalagowda. Mere

mentioning of 3 incidents in his life in book would not

be sufficient to make out a case against the plaintiffs

that nothing in the book would remotely suggest any

defamatory materials either against Gopalagowda or

against the plaintiffs.

27. The trial Court also misdirected itself in not

noticing the defences available to the defendants in a

suit for defamation. As a matter of fact, there is no

reference at all regarding the defences taken up by

the defendants. It is well settled that in a suit for

defamation what the Court has to examine is the

natural and ordinary meaning of the words found in

the book and the inference that could be drawn by


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the ordinary man. The learned authors Sir Brian Neill

and Richard Rampton in "Duncan and Neill on

Defamation" have quoted the decision of the House of

Lords in Rubber Improvement Ltd. v. Daily Telegraph

Ltd., (1963-2 All ER 151) on this point. Lord Reid has

observe as follows:

"There is no doubt that in actions for libel the

question is what the words would convey to theordinary man: it is not one of construction in the legal

sense. The ordinary man does not live in an ivory

tower and he is not inhibited by a knowledge of the

rules of construction. So he can and does read

between the lines in the light of his general

knowledge and experience of worldly affairs...Whatthe ordinary man would infer without special

knowledge has generally been called the natural and

ordinary meaning of the words. But that expression

is rather misleading in that it conceals the fact that

there are two elements in it. Sometimes it is not

necessary to go beyond the words themselves, as

where the plaintiff has been called a thief or a

murderer. But more often the sting is not so much in

the words themselves as in what the ordinary man

will infer from them, and that is also regarded as part

of their natural and ordinary meaning."

Lord Morris of Borth-y-Guest in the Privy Council inJones v. Skelton (1963) 3 All ER 952, has said:

"The ordinary and natural meaning of words may be

either the literal meaning or it may be an implied or

inferred or an indirect meaning: any meaning that


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does not require the support of extrinsic facts passing

beyond general knowledge but is a meaning which is

capable of being detected in the language used can

be a part of the ordinary and natural meaning of

words...The ordinary and natural meaning may

therefore include any implication or inference which a

reasonable reader guided not by any special but only

by general knowledge and not fettered by any strict

legal rules of construction would draw from the

words."

37. It was contended by the learned counsel for

Defendants 4 to 8 that their case stands on a

different plane. Mr. Channabasappa and Mr. Reddy

invited my attention to the stand taken by them intheir written statement. They submitted that all the

stigma that could be attached to the author and the

publisher cannot be fastened on their clients since the

portions which would affect the plaintiffs' reputation

have been omitted in the picture produced by them.

The picture is admittedly based on the novel and

without the novel the picture would not have come

into existence in the form in which it is now. As a

matter of fact the picture was given wide publicity by

associating the characters in the novel with the life of

Gopalagowda and, therefore, Defendants 4 to 8

cannot take the benefit of the characters in the life of

Gopalagowda and at the same maintain that the

picture by itself would not in any way affect the

reputation of Plaintiffs 1 to 3Therefore, it is a fit

case to go for the trial and till the trial is concluded,


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Respondents 4 to 8 should be restrained from

exhibiting and screening the picture.

40. Accordingly, this appeal is allowed and the order

of the trial Court is set aside. There shall be an order

restraining Respondents 4 to 8 from exhibiting and

screening the picture in question for a period of 2

months from today.

25 Case No: 03Title: George V Records, Sarl vs Kiran Jogani and Anr

Date of Decision: 11-Mar-2004

Citation: 111 (2004) DELHI LAW TIMES 43


1By this order I propose to dispose of plaintiff

application being IA 3812/2003 under Order 39

Rules 1 and 2, CPC and defendants application

being IA 4665/2003 under Order 39 Rule 4, CPC for

vacation for ex parte ad interim injunction granted by

this Court on 1st April, 2003.

2This Court on consideration of documents and

material on record, granted an ad interim ex parte

injunction restraining the defendants from

reproducing, replicating, distributing, manufacturing,

selling, offering for sale, advertising, directly or

indirectly dealing in any manner in music albums

under the trade markBUDDHA-BAR.

3The defendant aggrieved by the said order and

hence his application under Order 39 Rule 4, CPC.


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4.It is the plaintiffs case that the plaintiff is

proprietor of the trademark BUDDHA-BAR being used

in relation to music albums in several countries

around the world since the year 1999. The mark was

registered in many countries in Class 9 and 4The

plaintiff claims that its reputation generated across

the world spilled over to India and the plaintiffs

mark became distinctive of the plaintiffs goods and

the same were identified as goods of the

plaintiffsThe reputation of the plaintiff spilled over

on account of news items in TIME Magazine, New

York Times, The Times, Evening Standard, ES

Magazine, Detroit News and Free Press, Daily

Herald, Las Vegas Review Journal. Several Indian

newspapers and magazines in India also wrote in

their columns of the reputation and goodwill

generated by the mark BUDDHA-BAR in relation to

music albums. Indian celebrities and the media also

publicized the popularity of mark BUDDHA-BAR in

relation to music albumsThe plaintiff contends that

the adoption of the identical trademark by the

defendants is patently dishonest and is likely to

create confusion and deception in the minds of the

public causing the defendants goods to be

associated or identified as the goods of the plaintiff

6...The defendant contends that plaintiff is not

entitled to continuation of ad interim injunction as he

has failed to establish proprietary rights in the mark

BUDDHA-BAR because restaurant business was

owned by its affiliate company, who is not a party in

the present suitReliance placed on newspaper


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reports and magazines etc. do not further the case of

the plaintiff as the material relied upon by the

plaintiff is not admissible in evidence and is hearsay

evidence. BUDDHA-BAR has been used by third

party both in relation to the restaurant and music

businessThe plaintiff has failed to produce any

evidence showing the use of the mark in the country

of its origin, internationally or in India. Newspaper

reports cannot be relied upon. The most of the

documents filed by the plaintiff are of no assistance

to the plaintiff

7I have heard learned Counsel for the parties and

perused the documents on record.

8It is settled law that passing off is an action of deceit

where the defendant attempts to pass of his goods as

those of the plaintiffs

9.In order to succeed the plaintiff must establish prior

adoption and use of the mark and on account of use the

mark has acquired a reputation and goodwill and

become and distinctive of the plaintiffs goods in the

country of origin

10The reputation claimed by the plaintiff is on account

of news items in several international newspapers such

as Time Mazazine, New York Times, The Times Evening

Standard, ES Magazine, Detroit News and Fees Press,

Daily Heralds, Las Vegas Review Journal, who devoted

their column to BUDDHA-BAR restaurant and BUDDHA-

BAR music albums and both were linked to high fashion

and to celebrities. These publications have wide

circulation abroad and in India and moreover the


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circulation of these news items were prior to February,

2002. Several Indian Newspapers and magazines such

as Times of India, Mid-Day, The Hindustan Times,

Indian Express, The Hindu etc. spoke of the international

renown of mark BUDDHA-BAR in connection with the

restaurant and music albums and praised their high

quality of music linking it with well-known celebrities.

The Indian Press/ Media coverage of the mark BUDDHA-

BAR and the music associated therewith suggest spill-

over trans-border reputation into IndiaThe plaintiff

placed on record a large number of documents by way of

articles, pictures, interviews and write-up to establish

spill over reputation extending right up to the date of the

suit. It does not make any difference in case the said

items are downloaded from the internet when actual

excerpts of news items appeared in original

publicationsThe plaintiff has been selling CDs since

1999 in abroad and these music albums are in demand

abroad. Circulation of the music albums to is

internationally recognized as would be evidence from the

various articles in the journals and newspapers,

magazines copies whereof have been placed on record.

There is spate of Indian publications and foreign

publications on record where the mark BUDDHA-BAR

and music albums recognizing the reputation and

goodwill of the plaintiff in the mark BUDDHA-BAR and

music albums and its popularity in foreign country,which spilled over into India. The music albums have

also been sold through internet

11What is sought to be contended by the defendant is

that the plaintiff has failed to establish proprietary rights


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over the trademark BUDDHA-BAR as the restaurant

business is own by its affiliate, who is not party the

present suitThe documents filed by the plaintiff being

in the nature of newspaper reports are not admissible in

evidence and cannot, therefore, be relied upon.

12The contention of the defendant that the plaintiff

has not established proprietary rights to the mark

BUDDHA-BAR as the restaurant business was ownedby its affiliate, who was not a party to the suit is without

force. There is sufficient evidence produced on record to

show that the plaintiff was the user of the mark

BUDDHA-BAR in relation to music albums

15The next contention of the defendant that the

documents filed by the plaintiff in the nature of

newspaper reports are not admissible in evidence and

cannot be relied upon cannot be considered at this

stage. This can be if at all considered at later stage as it

may require evidence to be led by the parties to

determine this contention. The Court at this stage is to

see whether a prima facie case is made out to grant an

interim relief to the plaintiff at the interlocutory stage.

The Privy Council in the case of Subramaniam v. Public

Prosecution, 1 WLR 965 observed:

Evidence of a statement made to a witness who is not

himself called as a witness may or may not be hearsay.

It is hearsay and inadmissible when the object of the

evidence is to establish the truth of what is contained in

the statement. It is not hearsay and is admissible when

it is proposed to establish by the evidence not the truth

of the statement but the fact that it was made. The fact


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that it was made quite part from its truth, is frequently

relevant in considering the mental state and conduct

thereafter of the witness or some other persons in whose

presence these statements are made.

A Division Bench of the Madras High Court in the

matter of Haw Par Bros. International Ltd. v. Tiger Balm

Co. (P) Ltd. & Ors., reported in 1996 PTC (16) (DB) 311,

inter alia observed that There is nothing on record atpresent to reject the correctness of the reports found in

standard newspapers which have a reputation of correct

reporting

16Reliance placed by the defendant onare of no help

to the defendant in the present case. They are

distinguishable on facts. In some of the decisions

referred to there were no write-up or publication which

went out to the public like in the present case wherein

large amount of publicity material in local and overseas

publication have been produced on record

25In light of the aforesaid, it is prima facie established

that plaintiff is the prior adopter and user of the mark

BUDDHA-BAR in abroad. The plaintiff prima facie

established proprietary rights for the mark BUDDHA-

BAR in relation to music albums. The mark enjoys

reputation and goodwill in the country of its origin and

several other countries by way of advertisements/news

reports in reputed newspapers and reputed magazines

and spill over the same to India, which is also evident

from the newspaper reports and magazines, amount to

user of the trademark in relation to the music

albumsThe matter is only at an interlocutory stage for


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confirmation/vacation of the injunction. Trial has yet to

take place. The objections raised by the defendant shall

be considered at the time of trial as they may require

evidence to be led by the parties to determine the

objections. The plaintiff cannot be declined interim

protection at this stage

27Grant of an injunction is a discretionary relief. Three

guiding factors have to be kept in mind while refusing orallowing the relief of ad interim injunction namely

whether there exists a prima facie case; balance of

convenience between the parties and if injunction is not

granted, it will cause irreparable loss to the

plaintiffThere can be no dispute with regard to

proposition of law. It is indeed a sad reality that the trial

of the case does not reach hearing for several years.

Therefore, at the interim stage itself if the Court is prima

facie satisfied that the plaintiff is the prior adopter/user

and registered proprietor of the trademark and the

defendants adoption is dishonest, not granting an

injunction would amount to encouraging the tainted and

dishonest to seek benefit of the delay in the disposal of

the suit. Refusal of injunction shall result in irreparable

injury to the plaintiff as already observed that the

defendants adoption of the trademark is not honest.

Plaintiff in these circumstances would be entitled to

injunction.

28In view of the aforesaid discussion, I am satisfied

that there is sufficient material on record to prima facie

establish the reputation, goodwill and distinctiveness of

the plaintiff in relation to the music albums under the

mark BUDDHA-BAR internationally and spill over of the


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reputation into India. The plaintiff must succeed in the

present application. The plaintiffs application under

Order 39 Rules 1 and 2, CPC is allowed. The injunction

is confirmed. The application of the defendant under

Order 39 Rule 4, CPC is dismissed. No order as to costs.

...The observations made by me herein are only for the

dealing with this interim application and would in no

way affect the final determination of the controversyafter the trial of the suitSuit decreed. Application

dismissed

26 Case No: 04Appeal order and judgment of case no : 3Title: Kiran Jogani and Anr vs George V Records, Sarl

Date of Decision: 06-Nov-2008

Citation: 155 (2008) DELHI LAW TIMES 739 (DB)


2..The respondent-plaintiff filed a civil suit on the

Original Side of this Court. An interlocutory applicationfor injunction under Order 39 Rules 1 and 2 of the Code

of Civil Procedure, 1908 (the said Code for short) was

filed along with the plaint. The respondent-plaintiff was

granted an ad interim ex parte injunction and thus the

appellants-defendants moved an application under

Order 39 Rule 4 of the said Code for vacation of the

interim injunction. The learned Single Judge in terms of

the impugned order dated 11.3.2004 has confirmed the

interim injunction.

6.It would naturally be presumed that these were the

pleas advanced on behalf of the appellants-defendants


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as there was no review application filed by the

appellants-defendants seeking to contend that there

were other pleas raised which had not been dealt with

by the learned Single Judge.

7The pleas raised by the appellants-defendants, as

mentioned afore-said, have been comprehensively dealt

with by the learned Single Judge in the impugned

order

8Learned Single Judge has relied upon large amount

of published material placed on record by the

respondent-plaintiff in the form of newspaper reports

and magazines which would show that there was even

television coverage beamed to India on satellite

television of a fashion show held by Indian designer Ritu

Beri in the BUDDHA-BAR restaurantAt the stage of

interlocutory injunction, the learned Single Judge has

taken a prima facie view on the material brought on

record.

13.The result of the aforesaid is that it would have to

be considered whether the prima facie view formed by

the learned Single Judge on the basis of the evidence

placed on record by the respective parties can be said to

be arbitrary, capricious or perverse. The learned Single

Judge has, in fact, dealt with the evidence brought on

record in-depth

14We are unable to accept the plea of the learned

Counsel for the appellants-defendants that the material

in the form of newspaper reports, magazines and other

publications has to be ignored because it is in the nature

of secondary evidence. No doubt, the plaintiff would


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have the duty to prove the evidence on record by leading

appropriate evidence, but that stage had not arisen. The

reference by the learned Counsel for the appellants-

defendants to the judgments of the Supreme Court are in

relation to a final trial of a matter where hearsay or

secondary evidence cannot be considered. However, at

the interlocutory stage, where the parties are yet to have

the opportunity to produce witnesses to prove the

documents, such material cannot be shut out especially

taking into consideration the nature of controversy in the

present matter.

15What would be the best material which the

respondent-plaintiff could have produced to establish its

trans-border reputation? In our considered view, it

would be material akin to the one produced by the

plaintiff which would be relevant. It is not as if there is a

motivated article in one newspaper or magazine, but the

vast coverage given to the restaurant and the music in

international press and the magazines including

transmission of programs through television channels to

show even the participation of Indian designers

23.We having clarified the aforesaid two aspects in

respect of the impugned order of the learned Single

Judge, feel that the conclusion drawn by the learned

Single Judge for grant of injunction and dismissing the

application for vacation of injunction cannot be doubted.

The material has been rightly appreciated by the learned

Single Judge to come to a prima facie view. In fact, even

if we were to weigh this material again, there would

beno different prima facie conclusion. We must also

emphasize that the object of grant or refusal of interim


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injunction is to protect the inter se rights of the parties till

the Trial Court is able to reach a final conclusion post-

trial

REBUTTAL OF DEFENDANTS ARGUMENT:

27 The learned counsel for the Defendant No.1 has submitted sevenjudgments of the Honble Supreme Court for the kind

consideration of this Honble Court. It is respectfully submitted

that not one of the seven judgments cited by the counsel fordefendant No 1 has any relation to the facts of this specific case.

It is further submitted that the ratio decendi or the conclusion in

the said seven judgments do not even remotely advance the

argument of the first defendant in any manner.

Case No: 1

Title: S. Rangarajan Etc vs P. Jagjivan Ram

Date of Decision: 30-Mar-1989,

Citation: 1989 SCC (2) 574

28 This judgment answers the following question:29 When a film secures a certificate for public exhibition from the

Central Board of Film Certification as stipulated under the

Cinematograph Act 1952 and thereafter generates a controversy

due to the nature of its theme or content, is it open to a High

Court, in exercise of its extraordinary jurisdiction, to sit on

judgment over the content of such a film and to substitute its

own judgment for that of the Censor Board? Further, upon such

substitution, is the High Court also entitled to revoke the

certificate granted by the Central Board of Film Certification to

such film?

30 The Honble Supreme Court answered the above question in thenegative by holding that the Central Board of Film Certification is

required take into account the very concerns expressed in Article


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19(2) of the Constitution. That is, the Supreme Court held that

the constitutional right to freedom of speech and expression was

never absolute and that reasonable restrictions were permitted to

be imposed on such speech. Further, the Supreme Court held

that, once the Central Board of Film Certification came to a

decision to sanction a film for public exhibition, a High Court

could not substitute its own judgment to that of the Central

Board of Film Certification and thereafter revoke the certificate

granted to the film on the ground that the film in questioncriticizes Government Policies and Programmes.

31 This Judgment does not even have a remote connection to thefacts of this case. In fact, the judgment does not even address the

law relating to defamation. The counsel for the plaintiff are led to

thoroughly wonder about the relevance of this judgment to the

facts of the case before this Honble Court.

32 Further, Sathyananda, the film that is the subject of this casehas not even been certified for public exhibition. Whereas Ore

Oru Gramathile a national award winning Tamil feature film that

was the subject of the Supreme Court judgment had been

granted a certificate for public exhibition by the Central Board of

Film Certification.

33 Moreover, here, the plaintiff has invoked the ordinary civiljurisdiction of this Honble Court to recover damages from the

defendants for their past acts and utterances against the plaintiff

and for the further relief of restraint upon continuing defamation

of the plaintiff through the production of a Kannada feature film

titled Sathyananda. As such, the law that is invoked by the

plaintiff in this case is the law of civil defamation. Whereas, the

law discussed in the judgment of the Honble Supreme Court is

the law contained in the Cinematograph Act, 1952, the scope and

extent of judicial power vested in a High Court under Article 226

of the Constitution and the extent of freedom available to a film

producer to criticize Governmental policies and programmes.


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34 Further, no individual had sought any restraint upon the releaseof the film Ore Oru Gramathile on the ground that the said film

was insulting or defamatory to his reputation or character. As

such, the said judgment of the Supreme Court contains no

reference whatsoever on the nature of right available to a

producer of a film to defame another living individual person by

depicting him in a bad or defamatory light.

35 In fact, the following passages from the judgment of the SupremeCourt may be noted:

8....Article 19(1)(a) of our Constitution guarantees to all

citizens the right to freedom of speech and expressionBut

this right is subject to reasonable restrictions on grounds set

out under Article 19(2) of the Constitution. The reasonable

limitations can be put in the interest of sovereignty and

integrity of India, the security of the State, friendly relations

with foreign States, public order, decency or morality or in

relation to contempt of court, defamation or incitement to an

offence. The Framers deemed it essential to permit imposition

of reasonable restrictions on the larger interests of the

community and country. They intended to strike a proper

balance between the liberty guaranteed and the social

interestsspecified under Article 19(2)

12The Cinematograph Act 1952 ("The Act") which permits

censorship on movies is a comprehensive enactment

13Section 5(B) provides principles for guidance in certifying

films. It is significant to note that Article 19(2) has been

practically read into Section 5(B)(1).

17 It will be thus seen that censorship is permitted mainly

on social interest specified under Article 19(2) of the

Constitution with emphasis on maintenance of values and

standards of society


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34We find it difficult to appreciate the observations of the

High Court. We fail to understand how the expression in the

film with criticism of reservation policy or praising the

colonial rule will affect the security of the State or

sovereignty and integrity of India. There is no utterance in

the film threatening to overthrow the Government by

unlawful or unconstitutional means. There is no talk for

secession either. Nor there is any suggestion for impairing

the integration of the country. All that the film seems tosuggest is that the existing method of reservation on the

basis of caste is bad and reservation on the basis of

economic back- wardness is better. The film also deprecates

exploitation of people on caste considerations. This is the

range and rigor of the film.

51We are amused yet troubled by the stand taken by the

State Government with regard to the film which has received

the National Award. We want to put the anguished question,

what good is the protection of freedom of expression if the

State does not take care to protect it? If the film is

unobjectionable and cannot constitutionally be restricted

under Article 19(2), freedom of expression cannot be

suppressed on account of threat of demonstration andprocessions or threats of violence.

36 As may be seen from the above passages contained in thejudgment of the Supreme Court, a producer of a film is required

to honour the limitations contained in Article 19(2) of the

Constitution. One such limitation is derived under the law of

defamation. The case before this Honble Court is a defamation

suit and as repeatedly stated by the Supreme Court itself in the

above judgment, a producer of a film possesses a freedom of free

speech and expression subject to the various restrictions

contained in Article 19(2). As such, the said judgment can be of

no assistance whatsoever to the defendants.


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Case No: 2

Ajay Goswami vs Union of India & Ors 2006

Date of Decision: 12-Dec-2006

Citation: AIR 2007 Supreme Court 493

37 Again, this judgment of the Honble Supreme Court speaksnothing about the law relating to defamation. The counsels for

the petitioners are led to wonder about the relevance of this

judgment to the facts of this case. This judgment answers the

following question:

38 Whether a Court of law could direct the issuance of suitablelegislation for the protection of minors from exposure to obscene,

harmful and disturbing materials published by the newspaper

industry and others?

39 Dismissing the petition that came before the Court, the SupremeCourt expressed its hope that the Government of India would

pass appropriate legislation to protect minors from exposure to

obscene, harmful and disturbing materials published by the

newspaper industry. The last paragraph of the said judgment

says that:

64. We, therefore, dismiss the writ petition

40 The counsel for the plaintiff submits that the said judgmentmakes no reference whatsoever to the law relating to defamation.

To the contrary, the judgment stresses on the constitutional

restrictions against free speech.

58On the other hand the Constitution of India guarantees

the right of freedom to speech and expression to every

citizen. This right will encompass an individuals take on any

issue. However, this right is not absolute, if such speech and

expression is immensely gross and will badly violate the

standards of morality of a society. Therefore, any expression

is subject to reasonable restriction..


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41 As such this judgment of the Hon'ble Supreme Court can be ofno assistance to defendant No.1.

Case No: 3

Laxmi Raj Shetty and another vs. State of T.N.

Date of Decision: 26-Aug-1988.

Citation: 1988 CRI. L. J. 1783

42 The counsel for the defendant No 1 has argued that news paperreports are not admissible as evidence in a Court of Law and has

cited the following paragraph from this judgment

25We cannot take judicial notice of the facts stated in a

news item being in the nature of hearsay secondary

evidence, unless proved by evidence aliunde. A report in a

newspaper is only hearsay evidence. A newspaper is not one

of the documents referred to in S. 78(2) of the Evidence Act,

1872 by which an allegation of fact can be proved. The

presumption of genuineness attached under S. 81 of the

Evidence Act to a newspaper report cannot be treated as

proved of the facts reported therein

43 However, the proper meaning and context for the aforesaidobservation of the Court is contained in the very next paragraph

of the judgment which reads as under:

26It is now well-settled that a statement of fact contained

in a newspaper is merely hearsay and therefore

inadmissible in evidence in the absence of the maker of the

statement appearing in Court and deposing to haveperceived the fact reported. The accused should have

therefore produced the persons in whose presence the

seizure of the stolen money from appellant No. 2's house at

Mangalore was effected or examined the press


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correspondents in proof of the truth of the contents of the

news item.

44 It is submitted that reliance by the counsel for defendant No 1 oncertain passages contained in the said judgment is wholly

misplaced and misconceived.

45 This judgement of the Honble Supreme Court is delivered in thecontext of a criminal trail whereas the proceeding before this

Honble Court is of an interlocutory nature conducted in a civil

suit under the provisions of the Code of Civil Procedure, 1908.

46 The facts before the Honble Supreme Court may be noted.Paragraph1 of the judgement recites the circumstances under

which the appeal came before the Supreme Court.

1Appellant No. 1 Laxmi Raj Shetty is under sentence of

death on his conviction under S. 302 of the Indian PenalCode, 1860 for having committed the murder of the deceased

P.N. Gnanasambandam, Actg. Manager of the Karnataka

Bank, Main Branch, Madras by the First Additional Sessions

Judge, Madras by his judgment and sentence dated October

28, 1985. He has further been convicted under S. 392 for

having committed the offence of robbery of Rs. 13,97,900

from the strong room of the Bank and also under S. 449 for

having committed house trespass with intent to commit

the said robbery and murder. He has been sentenced

to undergo rigorous imprisonment for a period of seven

years on each of these counts and the sentences are directed

to merge in the sentence of death. Appellant No. 2 Shivaram

Shetty, father of appellant No. 1, a retired Sergeant Major of

the Indian Air Force, re-employed as Security Officer,

Karnataka Bank, Main Branch, Mangalore has been

convicted by the learned Additional Sessions Judge under S.

212 for having harboured his son Laxmi Raj Shetty having

known or having reason to believe that he had committed the

murder of the Bank Manager and disappeared with a very


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large sum of money from the Bank and also under S. 411 for

having with dishonest intention retained possession of the

huge sum of Rs. 12,27,500 knowing the same to be stolen

and sentenced to undergo rigorous imprisonment for a period

of three years on both counts; the sentences have been

ordered to fun concurrently. On a reference by the learned

Additional Sessions Judge, a Division Bench of the High

Court by its judgment dated September 1, 1986 has

confirmed the sentence of death passed on appellant No. 1Laxmi Raj Shetty under S. 366 of the Code of Criminal

Procedure, 1973 as also the conviction and sentences passed

on him under Ss. 392 and 449 of the Indian Penal Code and

those under Ss. 212 and 411 on his father Shiva Ram Shetty

47 Amongst the various arguments advanced by the accused, oneargument relied upon newspaper reports wherein it was stated

that recoveries of stolen money by the police had taken place in

the city of Mangalore in Karnataka whereas the prosecution

version was that the recoveries were made at a railway station in

Madras, State of Tamil Nadu. To support such an argument

during trail, the accused had even summoned the editors of

Tamil Dailies, Malai Murasuand Makkal Kurraland had also

summoned the news reporters of Indian Express and DinaThanthi newspapers to depose during trial. However, as

reproduced in paragraph 25 of the judgment of the Supreme

Court, the accused chose to not examine the said persons on the

date fixed for the defence evidence. Yet, the accused proceeded to

argue before the Supreme Court that the prosecution version

should not be believed in view of a different version appearing in

newspaper reportsthough not examined by the accused despite

an opportunity to do so at trial. The Honble Supreme Court

rejected such arguments of the accused and refused to give any

benefit of doubt to them merely on the ground that some

newspapers had reported a different version of money recovery.

The Court said that:


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25.As to the first, the accused Laxmi Raj Shetty was

entitled to tender the newspaper report from the Indian

Express of the 29th and the regional newspapers of the 30th

along with his statement under S. 313 of the Code of

Criminal Procedure, 1973. Both the accused at the stage of

their defence in denial of the charge had summoned the

editors of Tamil dailies Malai Murasu and Makkal Kurral and

the news reporters of the Indian Express and Dina Thanthi to

prove the contents of the facts stated in the news item butthey dispensed with their examination on the date fixed for

the defence evidence. We cannot take judicial notice of the

facts stated in a news item being in the nature of hearsay

secondary evidence, unless proved by evidence aliunde. A

report in a newspaper is only hearsay evidence. A

newspaper is not one of the documents referred to in S. 78(2)

of the Evidence Act, 1872 by which an allegation of fact can

be proved. The presumption of genuineness attached under

S. 81 of the Evidence Act to a newspaper report cannot be

treated as proved of the facts reported therein

26It is now well-settled that a statement of fact contained

in a newspaper is merely hearsay and therefore

inadmissible in evidence in the absence of the maker of thestatement appearing in Court and deposing to have

perceived the fact reported. The accused should have

therefore produced the persons in whose presence the

seizure of the stolen money from appellant No. 2's house at

Mangalore was effected or examined the press

correspondents in proof of the truth of the contents of the

news item. The question as to the admissibility of newspaper

reports has been dealt with by this Court in Samant N.

Balakrishna v. George Fernandez, (1969) 3 SCR 603 : (AIR

1969 SC 1201). There the question arose whether Shri

George Fernandez, the successful candidate returned to

Parliament from the Bombay South Parliamentary


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Constituency had delivered a speech at Shivaji Park

attributed to him as reported in the Maratha, a widely

circulated Marathi newspaper in Bombay, and it was said:

"A newspaper report without any further proof of what had

actually happened through witnesses is of no value. It is at

best a second-hand secondary evidence. It is well known

that reporters collect information and pass it on to the editor

who edits the news item and then publishes it. In this

process the truth might get perverted or garbled. Such news

items cannot be said to prove themselves although they may

be taken into account with other evidence if the other

evidence is forcible."

We need not burden the judgment with many citations. There

is nothing on record to substantiate the facts as reported in

the newspapers showing recovery of the stolen amount from

the residence of appellant No. 2 at Mangalore. We have

therefore no reason to discard the testimony of PW 50 and

the seizure witnesses which go to establish that the amount

in question was actually recovered at Madras on the 29th

and the 30th as alleged.

48 The counsel for the plaintiff submits that the proposition of lawcontained in this judgment of Honble Supreme Court is too well

known and established to require any discussion However, the

counsel for the plaintiff are unable to ascertain the relevance of

this judgment to the facts of the case before this Honble Court.

The defendants are not sought to be prosecuted under any penal

law. As such, there can be question of prosecuting the

defendants on the basis of any newspaper report. It is

respectfully submitted that the defendants have failed to wholly

recognize the fundamental difference between the standard of

proof in a civil trail and the burden of proof in criminal trial.

Having so failed to recognize the basic difference between the


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burden of proof in a civil and criminal trail, the defendants have

fallen into a massive error.

49 The counsel for the plaintiffs refer to the earlier judgments citedby them in relation to the standard of proof in civil proceedings

and more so, in relation to interlocutory proceedings thereat and

submit that reliance by the defendants upon the above judgment

rendered in the context of a criminal trial is wholly misconceived

and misplaced. In fact, a few similar judgments of the Honble

Supreme Court delivered in the context of criminal trials areroutinely cited by counsel in various sub-ordinate courts even

during interlocutory proceedings in civil proceedings and when

faced with a like situation, as may be seen from Case No.4 cited

by the counsel for the plaintiffs, the Delhi High Court rejected the

argument of the counsel by holding that:

14The reference by the learned Counsel for the appellants-

defendants to the judgments of the Supreme Court are in

relation to a final trial of a matter where hearsay or

secondary evidence cannot be considered. However, at the

interlocutory stage, where the parties are yet to have the

opportunity to produce witnesses to prove the documents,

such material cannot be shut out

50 Finally, as noticed by a five-judge constitution Bench o

final written argument seeking complete restraint on release of 'sathyananda' - 12-sep-2011

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