Civic Chandran V Ammini Amma

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1996 SCC OnLine Ker 63 : (1996) 1 KLJ 454 : 1996 AIHC 3964 : (1996) 1 KLT
608 : (1996) 16 PTC 670 : (1996) 22 CLA (SN 26) 29
In the High Court of Kerala

(BEFORE T.V. RAMAKRISHNAN, J.)
Civic Chandran & Others

Versus
C. Ammini Amma & Others
C.M.A. No. 329 of 1995
Decided on February 27, 1996
Page: 455
JUDGMENT
1. The staging of a drama ‘Ningal Are Communistakki’ (hereinafter referred to as
‘the counter drama’) written by appellant No. 1, Mr. Civic Chandran has been
restrained by an interlocutory order of injunction issued by the learned Additional
District Judge-I, Mavelikkara in O.S. 1/1995 pending before him. The ground on which
the order has been issued is that the staging of the said drama would prima facie
constitute infringement of the copy right of the famous drama “Ningal Enne
Communistakki” (hereinafter referred to as ‘drama’) written by late Mr. Thoppil Bhasi,
one of the well known playwrights, whose legal representatives are the plaintiffs in the
suit and the respondents in the appeal. Aggrieved by the order, defendants, 1, 4 and 5
have filed this appeal. The question to be considered is whether the order under
challenge is legally sustainable in the facts and circumstances of the case and in the
light of the legal principles required to be followed while granting interlocutory order of
injunction in cases like the one on hand.
2. Briefly stated, the relevant facts are thus: ‘Ningal Enne Communistakki’ is a well
known drama written in 1952 by late Thoppil Bhasi, one of the famous malayalam
playwright who has received some prestigious awards for his literary skill as a
playwright. According to plaintiffs, the said drama dealt with some of the buring social
and political problems of those days specially espoused by the then Communist Party
of India before its split. The drama had considerably aided the undivided Communist
Party of India to come to power in Kerala in 1957 Assembly Elections. The realistic
theme and songs of the said drama attracted and influenced large audience
enormously. Some of the characters of the drama like ‘Mala’ and ‘Karumpan’ had
become immortal.
Page: 456
The drama has already been played in more than 10,000 stages and was widely
appreciated throughout the State and outside and is still capable of attracting large
audience. Itwas be ingstaged by the 6th defendant K.P.A.C. (Kerala People's Art Club),
a famous Arts Club on the basis of the permission originally given by Thoppil Bhasi
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and subsequently by the respondents. All the rights in publishing and staging of the
drama were reserved by Thoppil Bhasi and after his death, stand vested with the
plaintiffs. According to plaintiffs, the 1st defendant has ‘fabricated’ another drama
‘Ningal Are Communistakki’, styling it as a counter drama to the drama of Thoppil
Bhasi and had published the same in 1995 in the annual issue of ‘India
Today’ (Malayalam) which is owned by the 2nd defendant, a private company whose
Executive Director, Printer and Publisher is the 3rd defendant. The 1st defendant had
copied substantial portions of the drama with some comments here and there in his
counter drama. The characters and dialogues in the drama are also reproduced as such
in the counter drama. Such copying and reproduction are made without any bona fides
and with the intention of taking undue advantage of the creative talents and labour of
Thoppil Bhasi which is illegal and violative of the provisions of the Copy Right Act
Further it was alleged that through the so-called counter drama, an attempt has been
made by the 1st defendant to denegrade and defame Mr. Thoppil Bhasi. Defendants 4
and 5, the President and Secretary of a drama troop by name ‘Rangabhasha’ are
making large scale preparations to stage the counter drama at various centres. In the
circumstances, the plaintiffs have prayed for a perpetual injunction against defendants
1 to 3 restraining them from publishing the counter drama any more and a perpetual
injunction against defendants 1, 4 and 5 restraining them from staging the counter
drama. The plaintiffs have also prayed for damages from defendants 1 to 3 for
publishing the counter drama in the literary annual edition of ‘India Today’ which is
owned by the 2nd defendant, a Private Limited Company whose Executive Director,
Printer and Publisher is the 3rd defendant.
3. Appellant No. 1 as 1st defendant in the suit (1st counter petitioner in I.A.
394/95) has filed a detailed counter affidavit opposing the reliefs prayed for in the
application. While admitting the fact of writing and publishing the counter drama it
was pointed out that though the counter drama was published in the annual issue of
‘India Today’ in January, 1995, the plaintiffs have fifed the suit only in the month of
August, 1995 just prior to the date fixed for themaiden staging of the counter drama.
There was no complaint about any violation of the copy right till the filing of the suit.
As such, it was contended that there is no bona fides in the claim made in the suit and
the application. It was also claimed that the counter drama is a new literary innovation
‘where a play is counter-posed by using the very same theme and characters’. Late
Thoppil Bhasi himself has adopted this method of writing dramas in his later play
‘Innu Innale Nale’. That play is a criticism against Bhasi himself and he refused to
confront his own characters in ‘Ningal Enne Communistakki’. The counter drama has
been
Page: 457
written mainly for the purpose of criticism or critical analysis of the original drama and
its characters for bringing out before the public how it failed to achieve the ultimate
purpose intended to be achieved by Bhasi by writing it. Copying of certain portions of
the drama in the counter drama can only be treated as ‘fair dealing’ since the purpose
of reproduction was criticism of the drama. As such, it will amount to ‘fair deal ing’
and will not amount to infringement of copy right. The counter drama is an original
creative work of the 1st defendant on which he has expended considerable time,
energy, labour and literary skill. The passages copied from the drama was extracted
only for the purpose of reciting or reading thesame from the stage as a dramatic
device and such uses cannot also be treated as an infringement of copy right It was
also pointed out that appellants have already spent considerable amount of time,
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effort and money in training the actors by conducting the rehearsal camps and making
costumes and stage settings. As a result of the public debate and advertisement
carried out by the appellants throughout the State, the public was eager to view the
drama. If the counter drama is staged, it will have a great impact on the political
developments in the State just as the drama was having when it was staged originally.
If the staging of the counter drama is delayed, the time, effort and money spent
already would go waste since the theme of the counter drama is closely related to
contemporary political situation, the relevance of it itself will be lost considerable, if
not fully. If the injunction is to continue, it will cause irreparable injury to the
appellants-counter petitioners. On the other hand, even if the counter drama is
permitted to be staged, nos eriousor irreparable injury orprejudice will be caused to
the plaintiffs. Even if loss or injury is caused to the plaintiffs as a result of the staging
of the play, the same can be compensated by awarding damages if the court
ultimately finds that there is any infringement of the copy right claimed by the
plaintiffs in respect of the drama. The claim was resisted on the above basis.
4. After referring to the relevant provisions of the Copy Right Act (hereinafter
referred to as ‘the Act’) namely Section 14, 51 and 52 and certain judicial decisions on
the point, the learned Judge considered the question whether the 1st defendant had
copied or reproduced substantial portion of the drama in the counter drama and
whether such copying can be treated as ‘fair dealing’. On the 1st question, the learned
Judge found that the 1st defendant had extracted substantial portion of the drama.
After finding so, on the question of defence plea of ‘fair dealing’, the only discussion
paragraph 13 of the order is to this effect:
“Mr. Civic Chandran, the 1st defendant—counter petitioner may have some
particular ideas, political or social. He has every right to express and propagate
those ideas. Writing, publishing or playing of drama is an effective media for
expressing or propagating such ideas. In doing so, he may criticise the views
expressed by others. But he must seek to write, publish or play drama in such
Page: 458
a way as not to infringe the copyright of the work of others. If he wanted to criticise
the ideas expressed by Thoppil Bhasi in his drama, Mr. Civic Chandran could have
used his own characters, dialogues and manner of presentation in the counter-drama.
Even if he had extracted portions of the drama for the purpose of such criticism it
would not have infringed the copy right provided that he could show that is only ‘fair
dealing’. Copying down or extracting substantial portions of the drama, and using the
same characters and dialogues of the drama with some comments here and there
through two or three characters in the counter-drama cannotbe treated as ‘fair dealing’
for the pupose of criticism. But that is what exactly is done by Mr. Civic Chandran. In
such a case he cannot claim portection U/s. 52 of the Copy Right Act.”
5. Both sides have reiterated before me their respective contentions raised before
the court below while arguing the appeal. Further, Shri A.X. Varghese, the learned
counsel for the appellants has submitted that while granting temporary injunction, the
learned Judge has not even adverted to the important aspects of irreparable injury and
the balance of convenience and as such the order is unsustainable in law. It was also
pointed out that there is a fair chance of the defence, plea of ‘fair dealing’ being
accepted and as such no injunction should have been ordered taking note of the
irreparable loss and injury likely to be caused to the appellants by the grant of
temporary injunction. On the other hand, the learned counsel for the respondents Shri
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Achutha Kurup has submitted that being an appeal against an interim order passed in
a pending suit unless it is found that the order is totally illegal or perverse, this court
while exercising the appellate jurisdiction will not normally disturb the discretion
exercised by the lower court while passing the impugned order restraining the staging
of the counterdrama. The balance of convenience is in keeping the status quo which
has continued from 22-8-1995 till the disposal of the suit by the trial court As such,
there may be a direction to the trial court to dispose of the suit as early as possible
keeping alive the order of injunction till the date of disposal of the suit, was the
submission of the learned counsel for the respondent.
6. As already indicated, this is a case where the plaintiffs have alleged infringement
of their copy right in the drama by copying or adopting substantial portions of the
drama as part of the counter drama. The submission was that it amounted to literary
piracy or plagearism. The fact that portions of the drama have been copied or
extracted in the counter drama is not in serious dispute. There is also no case that
such copying was done with the consent of the owners of the copyright. But, it is
relevant to note that the drama has not been reproduced or copied in its entirety or
even substantially in the counter drama. There is also no specific case that the
purpose of copying is to imitate or to produce a drama similar to that of the drama
with inconsequential changes
Page: 459
here and there to mask the copying, for the purpose of conveying the same idea for a
rival purpose. As against the alleged infringement of the copyright, the main defence
put forward is one of ‘fair dealing’ as contemplated under Section 52(1)(a)(ii) of the
Copy Right Act. The specific case put forward in substantiation of the defence set up is
that copying or extracting of portions of the drama has been done only as part of the
literary technique or method of writing a counter drama. It has been done specifically
for the purpose of criticism of the drama, the ideals and the events dealt with therein.
The scheme of criticism is to reproduce such parts of the drama which is to be
criticised for the effectiveness of the criticism and not for the purpose of re-enacting
the drama for a rival purpose or to cause prejudice monetary or otherwise to the
author for the persons in whom the copy right is vested. Such copying or adoption will
not amount to unfair appropriation of the drama was the submission on behalf of the
1st defendant It was contended that the same is the case in regard to the alleged
adoption of portions of the dialogues and the names of some of the characters in the
drama as part of the counter drama. It was sub-mitted that in the light of the claim
made and the defence set up, the plaintiffs can be found to have established a prima
facie case of infringement of the copy right only in case it is found that the defendants
have failed to substantiate prima facie their statutory defence of ‘fair dealing’. This in
brief is the scope and effect of the pleadings and arguments of the parties.
7. From what is discussed above, it is clearly a case where, while the plaintiffs have
got a copy right in the drama and they have put forward a claim based on its alleged
infringement by the 1st defendant by copying substantial portions of the drama, the
defendants have put up a statutory defence of ‘fair dealing’ inanswerto the plaint
claim. In the circumstances, it becomes necessary to consider what are the guiding
principles to be followed and the approach to be made in the matter of granting or
refusing the interim injunction prayed for in this case.
8. The law regarding copyright and its infringement in India is at present contained
in the provisions of the Act and the decisions rendered prior to and subsequent to the
Act by the Indian Courts and the Foreign Courts to the extent they do not go against
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the statutory provisions. While Section 51 of the Act deals with actions which may
amount to infringement of the copyright, Section 52 deals with the acts which may not
constitute an infringement of copyright. Section 52(1)(a) of the Act reads thus:
“52. Certain acts not to be infringement of Copyright. (1) The following acls
shall not constitute an infringement of copyright, namely:—
(a) a fair dealing with a literary, dramatic, musical or artistic work not being a
computer programme for the purposes of-
Page: 460
(i) Private use, including research; (ii) criticism or review, whether of that work
or of any other work;”
9. The term ‘fair dealing’ has notbeen defined as such in the Act. But Section 52(1)
(a) and (b) specifically refers to ‘fair dealing’ of the work and not to re-production of
the work. Accordingly, it may be reasonable to hold that the re-production of the
whole work or a substantial protion of it as such wil not normally be permitted and
only extracts or quotations from the work will alone be permitted even as ‘fair dealing’.
In the circumstances, the quantum of extracts or quotations permissible will depend
upon the circumstances of each case. It may not be proper to lay down any hard and
fast rules to cover all cases where infringement of copy right is alleged on the basis of
extracts or quotations from the copy-righted work. In a case like the one on hand,
court will have to take into consideration (1) the quantum and value of the matter
taken in relation to the comments or criticism; (2) the purpose for which it is taken;
(3) the likelihood of competition between the two works.
10. According to Copinger, the learned author, “it is only when the court has
determined that a substantial part has been taken that any question of fair dealing
arises. Though, once this question arises, the degree of substantial ity, that is to say,
the quantity and value of the matter taken, is an important factor in considering
whether or not there has been a ‘fair dealing’. Further, it is thought that, even under
the present law, in considering whether a dealing with a particular work was fair, it
would have to be considered whether any competition was likely to existbetween the
two works. Buteach case will depend on its facts, and what may be fair in one case will
not necessarily be fair in another case.”
(See Copinger and Skone James on Copyright Eleventh Edn., Paragraph 461, page
196).
11. As regards the principles governing grant or refusal of injunction in copy right
cases, the following passage from Halsbury's Laws of England, 4th Edn., Vol. 9,
paragraph 944, is apposite and may be usefully quoted:
“An interlocutory injunction will not, however, be granted where the defendant
mightsuffer irreparable injury from an injunction restraining him from publishing
pending the trial and the plaintiff can be properly protected by the defendant being
ordered to keep an account, nor will it normally be granted where a bona fide
defence of fair dealing has been pleaded, coming to the Court or his conduct has
amounted to acquiescence in the infringement or if there is any substantial doubt
as to the plaintiff's right to succeed. It has been held that in considering
Page: 461
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whether to grant an interlocutory injunction the judge must look at the whole case and
that the remedy by interlocutory injunction must not be made the subject of strict
rules.”
12. The balancing process indicated by Lord Diplock in American Cyanamid v.

Ethicon (1975) RPC 513 at pages 539-542) is relevant:
“The object of interlocutory injunction is to protect the plaintiff against injury by
violation of his right for which he could not be adequately compensated in damages
recoverable in the action if the uncertainty were resolved in his favour at the trial;
but the plaintiffs' need for such protection must be weighed against the
corresponding need of the defendant to be protected against injury resulting from
his having been prevented from exercising his own legal rights for which he could
not be adequately compensated under the plaintiffs' favour at the trial. The court
must weigh one need against another and determine where the balance of
convenience' lies.”
13. Along with the above special legal principles applicable to copy right cases, the
normal factors to be established before granting or not granting interim injunction
have also to be kept in view, namely the establishment of a prima facie case, the
balance of convenience and the irreparable injury likely to be caused incase injunction
is refused. At the same time, it has also to be borne in mind that it is not part of the
court's function at the interlocutory stage of the litigation to try to resolve finally any
of the points to be decided in thesuit with reference to the evidence yet to be adduced
in thesuitduring trial.
14. Hubbard v. Vosper (1972 - (2) W.L.R. 389) rightly relied upon by the learned
District Judge was a case where a claim based on infringement of copy right was put
forward on the allegation that copious quotations were made by the defendant in his
book from the copy-righted work. As in this case, the defence in that case was also
one of ‘fair dealing’. Of the three Judges of the Court of Appeal who heard the case,
Lord Denning M.R., L.J. has dealt with in detail the principle to be borne in mind while
issuing interim injunction with specific reference to the defence of ‘fair dealing’. It was
also a case where the trial Judge had initially granted ex-parte interim injunction
which was later confirmed by him after hearing the defendant. On appeal, the Court of
Appeal had vacated the order of injunction and permitted the defendant to proceed
with the publication of his work without any condition whatsoever. It was held in the
decision that ‘fair dealing’ is a question of fact and of impression to which factors that
are relevant include the extent of quotation and its proportion to comment (which may
be justifiable although the quotation of the whole work). It is relevant to quote the
following passage from Vosper's case (Page 398, Denning LJ):
Page: 462
“It is impossible to define what is ‘fair dealing’. It must be a question of degree.

You must consider first the number and extent of the quotations and extracts. Are
they altogether too many and too long to be fair? Then you must consider the use
made of them. If they are used as a basis for comment, criticism or review, that
may be fair dealing. If they are used to convey the same information as the author,
for a rival purpose, that may be unfair. Next you must consider the proportions. To
take long extracts and attach short comments may be unfair. But, short extracts
and long comments may be fair. Other considerations may come to mind also. But,
after all is said and done, it must be a matter of impression. As with fair comment
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in the law of libel so with fair dealing in the law of copyright. The tribunal of fact
must decide.”
15. In the same decision, it has been held that criticism or review may relate not
only to literary style but also to the doctrine or philosophy of the author as expounded
in his book. A fair criticism of the ideas and events described in the books or
documents would constitute ‘fair dealing’. It is also relevant to quote the following
observations of Lord Denning M.R. in Hubbard v. Vosper (1972 (2) W.L.R. 389):
“In considering whether to grant an interlocutory injunction the right course for a
judge is to look at the whole case. He must have recalled not only the strength of
the claim but also to the strength of the defence and then decide what is best to be
done. Sometimes it is best to grant an injunction so as to maintain status quo until
the trial. At other times it is best not to impose a restriant upon the defendant to
leave him free to go ahead. The reason is because the defendant if he is right is
entitled to publish it and the law will not intervene to suppress freedom of speech
except when it is abused.”
16. As regards the decisions of our Supreme Court and the High courts referred to
by the counsel on both sides, it has to be noted that none of them are cases where a
defence of ‘fair dealing’ was put forward directly as a defence. The Supreme Court in
R.G. Anand v. Delux Films ((1978) 4 SCC 118 : A.I.R. 1978 S.C. 1613) which was a
case where literary piracy or plagiarism was put forward and denied has held thus:
“One of the surest and the safest test to determine where or not there has been
violation of copyright is to see if the reader, spectator or the viewer after having
read or seen both the work is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original.”
17. It has also been clearly laid down in the above decision that “there can be no
copyright in an idea, subject-matter, themes, plots or historical or legendry facts and
violation of
Page: 463
the copyright in such cases is confined to the form, manner and arrangement and
expression of the idea by the author of the copyrighted work.”
18. Keeping in mind the above principles of law and the facts and circumstances of
the case, it is necessary to consider whether the plaintiffs have succeeded in
establishing a prima facie case of infringement of the copyright to get an order of
interim injunction as granted by the learned District Judge in this case.
19. For a proper consideration of the above question, it may be useful to have at
least a broad idea about the theme, events, characters and certain other important
features of the drama and the counter drama.
20. It was in 1952 that the drama was written by Thoppil Bhasi. At that time, Bhasi
was an active worker of the Communist Party of India and in fact he wrote itwhile he
was living in political hiding. The main theme or story of the drama is the touching
story of the oppressed and depressed classes of the contemporary society in Kerala
consisting mainly of agricultural and all other kinds of workers who have turned out to
be revolutionaries attracted and guided by the new political ideology of the undivided
Communist Party of India. It was the most popular drama of that period. The main
purpose intended to be achieved by writing the drama was to organise the oppressed
classes or common people of the lowest strata of the society to fight against social
evils and to have a social, political and cultural revolution in the contemporary society
so as to set up a new social order where the workers will be the rulers. The clarion call
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of the party to its followers was to unite, revolt and fight against poverty, dpprerssion,
exploitation and all other kinds of social and political evils and to sacrifice everything
for the success of the cause for which they were fighting. The promise made by the
party to its followers and the public was that they can hope for a better tomorrow and
the establishment of a new system in which they will be the rulers and can live a life
worthy of living. The characters in the drama fall mainly into two or three groups. They
represent a) landlords and others belonging to rich upper classes who lead a life full of
pleasures exploiting the poor uneducated and socially backward classes of the society;
b) social and educationally backward classes of the society who are mainly agricultural
and other kinds of workers toiling day in and day out and still living in poverty and
miseries of all kinds; and c) dedicated workers and leaders of the Communist Party.
Valiya Veettil Kesavan Nair is the representative of the landlord class bent upon
exploiting and harassing the working class in all respects for safeguarding their self
interest Paramupilla, Velussar and Kallyani Amma are characters representing upper
middle class people who cling on to their past glory even while struggling for existence
as a result of new land legislations and other social and political changes. Mala,
Karampan, Sumam, Gopalan, Mathew and Pappu are all political workers and leaders
Page: 464
of the party. Of them, Mala and Karampan are representatives of the most depressed
class of people in the society. Sumam, Gopalan and Mathew hail from upper or upper
middle classes. Mala, a pulaya lady, considered as the most important character of the
story has been characterised as an ardent party worker who have sacrificed everything
for the success of the cause for which the party herself and her people were fighting.
Though Gopalan and Mala were close to each other for a long time and were in love
with each other, Gopalan ultimately falls in love with Sumam, an upper class party
worker who is also the daughter of Valiya Veettil Kesavan Nair. Kesavan Nair
representing the exploiting classes of the society becomes a desperate man at the end
of the drama when he found that even his own daughter has turned out to be an
ardent Communist Party worker and that she has fallen in love with Gopalan whom he
hates top to bottom. Though desperate, Kesavan Nair still declares that he had not
been defeated so far and he is not going to be defeated hereafter also. At the end of
the drama, Paramupilla, father of Gopalan who at the beginning of the drama strongly
resisted and protested against all the activities of workers and leaders of the party
gets transformed as a Communist slowly but steadily and joins with Mala, Karampan
and other party workers and leaders in participating in Jadhas and raising the red flag.
The drama ends when Paramupilla in an inspired mood gets the red flag held by Mala
from her and declares that he wanted to hold it and hold it aloft with both hands. The
drama consists of 14 scenes.
21. It is in 1995 about 4 decades after the drama was written that the counter
drama was written and published for the first time. It contains 9 scences together with
a short introductory scene. All the characters who appear in the introductory scene are
characters of the drama. Mala with a red flag, Karampan, Mathew, Pappu and Gopalan
appear together in the background of a burial ground with a martyr's memorial
building therein. They appear on a lower part of the stage. On the upper part of the
stage, Paramu Pillai & Kesavan Nair of the drama also appear simultaneously. Dialogue
spoken to by the characters in the introductory scene relate to red flag, the war that
was waged by Mala and others who united under the Red flag, the failure of the war
waged by them. Paramupilla, a conservative upper middle class Nair small land holder
harassed by the rich landlord Kesavan Nair and helped in many ways by party workers
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saying that he will hereafter live as a Communist and will be in the forefront of
political agitations and processions. He expresses his desire to hold the red flag aloft.
Kesavan Nair declares that he is not going to admit defeat and is determined to live
changing himself in terms with the changed political and social set up. The scene ends
with Thoppil Bhasi's appearance on the scene saying that he has come there to see the
real condition in which Mala is at present. The curtain falls with an announcement to
the following effect; “Ningal Are Communistakki—Counter drama—In the theatre a
political dialogue— Ningal Are Communistakki”. In the first scene the actors are the
watchman of the burial ground, an old man who is a character in another drama
written by Bhasi, and Bharathi
Page: 465
the adopted daughter of Mala. Bharathi and the old man have come to the burial
ground with the dead body of Mala to be buried there. The day happens to be the day
prior to the date fixed for swearing-in the new Chief Minister elect who is none other
than Gopalan, the leader with whom Mala and others have waged their struggle
against oppression and feudal domination. Through the dialogue between the
characters of the counter drama what is sought to be conveyed is that When
ultimately the party has won the elections and come to power and Gopalan who had
by then married Sumam the daughter of Kesavan Nair after foresaking Mala and her
love is going to be sworn-in as Chief Minister, Mala who represented the toiling masses
of the depressed and oppressed class of the society had to die with a broken heart in
the same old pitiable condition with shattered aspirations and hopes of a better
tomorrow promised by her party and its leaders leaving her only daughter (adopted) in
a hapless condition. The dialogue in the scene in its entirety is about the drama, its
characters, their life, about its author and the K.P.A.C. who staged the drama.
Bharathi addresses the deadbody of her mother Mala and says; Mother, tell these
audience who have already seen the drama on more than 5000 stages, as to what has
happend? What has been hidden by Thoppil Bhasi, K.P.A.C. and the Communist Party?
How Mala's red flag was snatched away and handed over to Paramupilla and Kesavan
Nair by Gopalan and Mathew? How they held it aloft? How they have santached the
leader ship jumping over Mala and Karampan who were in the front raw of all
agitations. How Mala and Karampan were again contemptuously drivan away far apart
64 feet away? As indicated at the end of the introductory scene, what is contained in
scene one is a discussion and a critical assessment about the theme and events of the
drama in the changed set up. The second scene of the counter drama is a repetition of
scene No. 8 of the drama. It has been stated so at the beginning of the scene itself.
AH the characters and the dialogue are the same as in scene No. 8 of the drama. The
comments made by Bharathi at the end of the scene alone is the addition made by the
author of the counter drama and that is to this effect: “This is how Gopalan made
Sumavali Amma the heroine of his own life and that of the party kicking the heart of
Mala.”
22. Scene 3 is specifically indicated as a continuation of scene 2. Bharathi, old man

and the watchman are the only characters who appear in scene 3 also. Characters are
involved in a keen discussion about the conduct of party leaders like Gopalan and
others in the drama at the time of discussion, how Mala was foresaken and betrayed
by Gopalan and about certain political developments of general importance which took
place subsequent to the writing and staging of the drama concerning the leaders of
the party and the cultural revolutipn which followed the staging of the drama. In scene
4 also, the characters are Bharathi, old man and the watchman. Bharathi and the old
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man are engaged in an animated discussion about all that has happened to Bharathi,
the adopted daughter of Mala, Mala, the heroine of the drama and a frontline worker of
the
Page: 466
party, Karampan, Mala's father and to their hopes for a better tomorrow. Certain
political and social developments both current and past are the topics discussed by the
characters. In the discussion, well-known political and social leaders like Sir C.P.,
Iyyankali and Com. Krishna Pillai are being referred to incidentally. It also refers to the
fall of the Communist party in Eastern Europe. A reference is even made to the famous
story in Mahabharatha where Kauravas attempted to kill the Pandavas and their
mother Kunthi trapping them in a building built of wax and setting fire to it. Though
Pandavas getting information about the treacherous plan of the Kauravas escape from
the wax building timely through an underground path, Bhirria who sets fire to the wax
building sees that a Nishadha woman and her five childern who were given food by
Kunthi get perished inside the building so as to make it appear to the Kauravas that
Pandavas have really perished in the fire. The suggestion made by referring to the epic
story is that the intelligent and clever upper class always escapes or succeeds whereas
the depressed and oppressed class always fails or gets cheated and perished at the
hands of the upper class. The entire dialogue between Bharathi and the old man is
clearly a criticism of the various actions which the party had taken during the time
when the drama was written and thereafter till date. In scene 5, the characters are
Karampan, Sumam, Gopalan and the old man. In fact, a portion of scene 7 of the
drama has been made part of scene 5 of the counter drama. Copying has been
specifically acknowledged at the very beginning of the scene itself. The only addition
to the extracted portion of the drama is the comment made by the old man at the end
bf the scene. Scene 6 is stated to be a continuation of scene 5. In scene 6 again, the
old man, Bharathi and the watchman are engaged in an animated discussion and
criticism of the different ways in which the followers of the depressed classes and the
upper classes within the party have behaved during the time of the political and
cultural revolution and thereafter. There is even a comparison between the work done
by personalities like Iyyankali and Sreenarayana Guru and that done by party and its
leaders for the oppressed and depressed classes with a view to show that how
insincere was the party and its leaders towards the oppressed and depressed classes
for whose upliftment and welfare the party was supposed to have been built up. The
suggestion is that the party and its upper class leaders were cheating the depressed
and oppressed section of its followers and were betraying them for their own personal
benefit As such, the old man suggests that they should have poets, leaders, artists,
singers and philosophers from their own class and not from the tipper classes who
cannot at all be believed. This in short is the critical assessment made by Bharathi and
old man during their dialogue in scene 6. Scene 7 again incorporates a portion of
scene 13 of the drama though a very small portion. As scene 3 and 6 were
continuation of scenes 2 and 5, scene 8 is also stated to be a continuation of scene 7.
In scene 8 again there is a heated discussion among Bharathi, old man and the
watchman about certain events and developments which took place in the past and
about matters to happen hereafter as well. It again is a critical analysis of the social
and political chanages taking place in Kerala
Page: 467
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and in the world. Mainly what is suggested in the discussion is that persons with
vested interest always try to comer power and to continue in power whatever be the
changes which may happen in the social and political set up. The old man declares
that success is always that of ‘Valiyaveetans’. They become Congress when Congress
rules, they become Communist when Communist comes into power, they would
become nexalites when nexalites come into power. Com. Gopalan, the Chief Minister
elect and Valiya Veettil Kesavan Nair his father-in-law comes to pay their respects by
placing wreaths infront of the Martyr's memorial building. Kesavan Nair was
accompanying Gopalan to be honoured by conferring the title of Padmasree by
Gopalan on that day itself. As soon as they enter the scene, Bharathi and the old man
rush to the scene with the covered dead body of Mala and then slowly removes the
cloth from her face. Mala begins to speak slowly in a low voice to the effect that in the
war we failed, failed, failed. Then the old man just like a magician makes Mala stand
up as if she was only sleeping till then. Thereafter in the stage a trial goes on in which
Mala takes the role of, a Judge. At the time when the trial was about to begin, Thoppil
Bhasi enters saying to Mala that I have come again to see you and to see the real
condition in which you are. At the end of the scene, the old man makes a declaration
to the following effect: “But Mala, can we be satisfied with this old red flag even now?
Should we not begin from where the Soviets and Communes have failed? Should it not
be necessary forus to read Gandhi and Lohya at least now? Is there not before us the
path, Neyogi, Amte and Medha are now treading upon? Yes. We should have a new
concept of freedom. A new relationship between society and nature.” There is a further
note to the effect that from here a dialogue begins.
23. From the above broad comparative analysis of the drama and the counter
drama, it is evident that copyingor re-production of the portions of the drama was
obviously not for the purpose of re-producing the drama either as a whole or in a
substantial manner to convey the same idea which the author of the drama wanted to
convey. The purpose was also not to imitate the drama or to produce a drama similar
to the drama misappropriating the theme, the form of presentation, the characters,
the dialogues and the technique adopted in writing the drama. Except in the scenes
where expressly portions of scenes from the drama are adopted or incorporated as part
of the counter drama all other scenes are scenes written without copying any of the
features of the drama. The theme, the ideology intended to be propagated, the events
discussed and the dialogue used and the technique adopted in writing the counter
drama are entirely different from that of the drama except in the portione adopted
from the drama. In fact, it is more or less evident that the purpose of writing counter
drama is to criticise the idea propagated by the drama and to expose to the public that
the drama has failed to achieve the real object intended to be achieved by writing the
same. What is intended to be conveyed through the counter drama is that though the
party has succeeded in coming to political power, it has foresaken or forgotten the
depressed classes who have fought mainly for its success and lost everything in that
process including the lives of large
Page: 468
number of them. As in the case of drama, in the counter drama also, there is a
message to be conveyed to its readers and viewers. The message is the one which the
old man has declared in the last scene which has already been referred to earlier. The
finding of a new path to establish a new social order removing the inequalities and
evils now existing in the present system is the object to be achieved. The dialogue
spoken to by the characters of the counter drama are mainly criticism of the drama
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and the contemporary social and political developments taking place in Kerala and
outside in Kerala. Often references are made to well-known social and political leaders
and historical incidents which are considered as milestones in the progress of society
in Kerala. It may be extremely difficult to hold at least at this stage of the case that
there are no new thoughts or new ideas in the counter drama and no labour and skill
of his own was used by the 1st defendant in writing the counter drama and that it is a
mere reproduction or imitation of the drama with inconsequential changes effected
here and there merely to escape from the charge of plagearism or literary piracy. That
apart, even in respect of the 3 or 4 scenes where portions of the drama have been
adopted as such, there is prima facie force in the submission that it was for the
purpose of recapitulating the important events in the drama that they were copied as
such in the counter drama. Technique used is to reproduce or re-enact part of the
drama from a raised portion of the stage and in the succeeding scene staged in a
lower part of the stage as a continuation of the scene, make criticism of the important
events directly dealt with in the drama in the light of the subsequent developments
through the dialogue spoken to by the characters in the counter drama. Prima facie, I
am inclined to take the view that the attempt was not to reproduce either a scene or
part of a scene in its entirety with a single comment made at the end of the quotation
for conveying the same idea for a rival purpose, namely to reproduce the drama itself
or part of it for monetary benefit causing loss to the owners of the copyright. The
comment made at the end of the reproduction seems to be not one used only as a
cover to mask the copying. It used to be discussed at length in the succeeding scene
in the own language of the author of the counter drama without borrowing anything
from the drama. In fact, such discussion used to be severe criticism of the theme and
the ideology and philosophy of the author of the drama and the party and other
connected matters. Whether such criticisms are fully justifiable or well-founded or
bona fide is a matter to be decided after the entire evidence is adduced and duly
considered in the case. The only point to be noted is that appropriation of part of
drama as part of the counter drama was not for the same purpose for which the drama
was written and was for the purpose of criticism of the theme, events and the ideology
of the book and its author. At any rate, it was not for the purpose of imitating or
reproducing drama like the copyrighted drama or to produce the same drama with
some insignificant changes here and there. By no stretch of imagination one can come
to such a conclusion in this case. There is every reason at least prima facie to think as
contended on behalf of the appellants that the portions of the drama were made part
of the drama only to make the criticism of the drama and the events discussed in the
drama more effective and dramatic.
Page: 469
The counter drama is a criticism of the drama only in part. It is not a work in which
the drama and its author alone are criticized. Substantial portion of the counter drama
is intended also to criticize various political and social developments of current
importance and to bring about a new political and social system curing those defects
on account of which the movement led by the party and the characters in the drama
failed according to the author of the counter drama or the characters in it. If, as a
matter of fact, and as contended by the appellants, the drama, its ideas, events and
its author are sought to be criticized in the counter drama along with various other
contemporary developments in the political and social fields, there is strong reason to
accept at least prima facie the contention that the quotations were made mainly for
the purpose of effectively criticizing the drama. Without the attention of the readers
and viewers being drawn to the relevant portion of the drama, the criticism to be
-----------------------------------------------------------------------------------------------------------------------------------------------------------
made through the counter drama cannot be effective. Viewed in this manner, I find
that there is sufficient reason to accept at least prima facie that there is a strong
defence case to be considered on merits put up by the defendants in opposition to the
claim of the plaintiffs in the suit.
24. It was contended that even if the purpose of copying or reproduction was to
criticize the portions of the drama or the ideologies of its author or the party, still, it
may not amount to ‘fair dealing’ unless the defendants show that the criticism is fair
and justifiable in the facts and circumstances of the case. Even assuming that the
defendants in this case are under an obligation to establish that the criticism is
justified in the facts and circumstances of the case, the question whether the
criticisms levelled are all justifiable or not is a matter to be considered in the suit itself
and cannot be dealt with at this interlocutory stage. Defendants may have to be given
an opportunity to establish that the criticism levelled is fair and justifiable in the facts
and cricumstances of thei case.
25. At one stage of the argument it was submitted that there was no criticism
either of the drama or its ideals, but the intention of writing the counter drama was
only to level baseless allegations and accusations againt the author of the drama and
the party and its leaders. Even assuming that it is really so, it may not help the
respondents to establish their case that there is infringement of the copyright and on
that ground to get an injunction against the defendants.
26. If on the other hand, the main purpose of the author of the counterdrama is to
critically analyse the activities of the party and the author who was an ardent
Communist Party worker while the drama was written with reference to the events
which took place subsequent ot the staging of the drama and the success of the party
in getting political power and to express his own views or conclusions about it, the
injunction ordered will really interfere with the freedom of expressing those ideas in an
accepted art form. As the matters dealt with are of current importance, the prevention
Page: 470
by injunction of the printing and publication and staging would be illegal and unjust.
The counter drama in that event will altogether lose its relevance and would become
practically worthless or useless, even if the suit is ultimately dismissed.
27. It is relevant in this connection to note two or three other important aspects of
the case also. First of all there is no case even that there will be any competition
between the drama and the counter drama even if the counter drama is printed and
published or staged. By no stretch of imagination, it can even be suggested that those
who wanted to read or see the drama will read or see the counter drama. As such, one
of the relevant considerations laid down in Habbard v. Vosper (1972 (2) W.L.R. 389)
to be satisfied while granting injunction, namely, that there is likely to be a
competition between the two works is not satisfied in this case.
28. Secondly, it is to be noted that the counter drama was published as early as in
January, 1995 and the suit was only instituted in July, 1995 just a day prior to the
date fixed for staging the drama. If the plaintiffs were aggrieved by the printing and
publishing of the counter drama, there is no explanation why they have not taken any
action immediately after the printing and publication of the counter drama. Though
the above circumstances may not be fatal to the maintainability of the suit, it should
have been taken note of while considering the question or granting an injunction as
prayed for by the plaintiffs in this case.
29. Thirdly, while considering the question of irreparable injury and balance of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
convenience the learned Distict Judge ought to have taken note of the specific
contention put forward by the defence that the defendants especially defendants 2 and
3 have made all arrangements for staging the counter drama spending a huge amount
and that if the staging is stayed, it will result in irreparable loss and hardship to them
and that if an injunction is not granted, no irreparable injury would be caused to the
plaintiffs. Even if any monetary loss is likely to be caused to the plaintiffs on proving
the same, the plaintiffs could be compensated by directing the defendants to pay such
damages or compensation which the court deems fit From the case set up in the plaint
itself, it is evident that even now the drama is popular and is in demand for staging
profitably. The exploitation of the drama by staging the same or by printing and
selling it, will not in any way be affected by the printing and sale or staging of the
counter drama. So long as there is no case that the staging of the counter drama
would affect the collection that is being expected from staging the drama, it may not
be possible to contend that monetary loss is going to be caused to the plaintiffs as a
result of Staging the drama. There is also a case for the defendants that unless the
counter drama is allowed to be printed, sold and staged it will loose all its relevance as
the matters dealt with in it are of current importance.
Page: 471
30. I may also make a note of the contention raised by the plaintiffs in the plaint
that there is an attempt in the counter drama to denegrade or tarnish the fair name
and repute of the author of the drama. Even assuming that there is such an attempt,
it eannot be treated as an infringement of the copyright and no injunctin can be
obtained in this suit on that basis. However, in this connection, I may record the
submission of the learned counsel for the appellant that in the future publications of
the counter drama, they will drop the following sentences from the script of the
drama:
31. It was also submitted that while staging the drama also, the above sentences
will not be used as part of the drama.
32. In the light of the discussion made above, I am constrained to take the view
that the learned Judge was not justified in granting an injunction in the facts and
circumstances of this case. In my view, the defendants have prima facie succeeded in
establishing that copying of portions of the drama even if it is held to be substantial
portions, was for the purpose of criticism and as such it will only amount to a ‘fair
dealing’ and not an infringement of the copyright. If the defendants have succeeded in
establishing prima facie that they have the statutory defence of ‘fair dealing’ to put up
against the plaint calim, it may not be possible to find that the plaintiffs have
succeeded in establishing a prima facie case of infringement of the copyright even if
admittedly there is copying of portions of the drama in the counter drama, in the light
of the above findings, I would set aside the order granting the injunction and would
dismiss the application for injunction.
33. As the injunction application is being dismissed, it is absolutely necessary that
the trial and disposal of the suit should be expedited to the maximum extent possible.
Both the parties have expressed their readiness to get ready in the matter at any time
the court decided the case to be posted for trail. In the circumstances, there will be
direction to the court below to complete all pre-trial steps within a maximum period of
three months and to post the case to a definite date after the expiry of the three
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months and to proceed with trial till the end, posting the case on a day to day basis to
the extent possible.
34. In the light of the somewhat detailed discussion of the various aspects of the
case contained in this judgment, I would specifically make it clear that none of the
observations and findings contained in the judgment about the merits of any of the
contentions raised in the suit should prejudice the trial and disposal of the suit and the
suit should be disposed of unaffected by such observations and findings in this
judgment.
Page: 472
35. Forward a copy of the judgment along with the records if any records have been
called for.
36. C.M.A. is accordingly allowed.
37. Order passed by the court below is set aside. I.A. No. 395/1995 will stand
dismissed. The parties will bear their respective costs.
———
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Page 1 Wednesday, July 19, 2023

In the High Court of Kerala

Civic Chandran & Others

12. The balancing process indicated by Lord Diplock in American Cyanamid v.

“It is impossible to define what is ‘fair dealing’. It must be a question of degree.

22. Scene 3 is specifically indicated as a continuation of scene 2. Bharathi, old man

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