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Article 21 in The Constitution Of India 1949
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Gujarat High Court
Kirtibhai vs Raghuram on 20 January, 2010
Author: M.R. Shah,&Nbsp;

Gujarat High Court Case Information System

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AO/262/2007 8/ 42 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

APPEAL

FROM ORDER No. 262 of 2007

With

CIVIL

APPLICATION No. 9389 of 2007

In

APPEAL

FROM ORDER No. 262 of 2007

For

Approval and Signature:

HONOURABLE

MR.JUSTICE M.R. SHAH

=========================================================

1

Whether

Reporters of Local Papers may be allowed to see the judgment ?

2

To

be referred to the Reporter or not ?

3

Whether

their Lordships wish to see the fair copy of the judgment ?

4

Whether

this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================================

KIRTIBHAI

RAVAL & 1 - Appellant(s)

Versus

RAGHURAM

JAISUKHRAM CHANDRANI - Respondent(s)

========================================================= Appearance :

DR

SONIA HURRA for

Appellant(s) : 1 - 2.

MR MIHIR THAKORE FOR SINGHI & CO for Respondent(s) :

1,

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE M.R. SHAH

Date

:20/01/2010

CAV

JUDGMENT

1. Present

Appeal from Order under Order 43 Rule 1(r) of Code of Civil Procedure has been preferred by the appellants original defendants to quash and set aside the impugned order dated 15.06.2007 passed below Notice of Motion Exh.6 and 7 in Civil Suit No.207 of 2007 passed by the learned Judge, City Civil Court, Ahmedabad by which learned Chamber Judge of City Civil Court, Ahmedabad has allowed said Notice of Motion taken out by the respondent- original plaintiff by restraining defendants from making, releasing, publishing, exhibiting, publicly or privately selling, promoting or advertising or entering into film festivals or in any manner producing in any format film, drama, serial or any other literary or artistic expression in respect of the life of Shri Jalaram Bapa and /or his family members and their direct descendants without the consent of the plaintiff till final hearing and disposal of the Suit.

2. Facts

leading to the present Appeal from Order in nutshell are as under:

That

original plaintiff claiming to be direct descendant of late Shri Jalaram Bapa of Virpur has instituted Civil Suit No.207 of 2007 for declaration and permanent injunction and to declare that defendant nos.1 and 2 appellants herein do not have any legal right, power or authority to make, release, publish, exhibit publicly or privately, sell, enter into film festival, promote, advertise or produce in any format or medium wholly or partially the film in the name of Jay Jalaram Bapa or otherwise, drama, serial or any other literary or artistic expression in respect of the life of late Jalaram Bapa and/or his family members and their direct descendants without the consent of the plaintiff. Plaintiff has also prayed to issue permanent injunction restraining defendants nos.1 and 2 from making, releasing, publishing, exhibiting publicly or privately selling, promoting or advertising or entering into film festival or otherwise producing in any format any film, drama, serial or any other literary or artistic expression in respect of the life of late Jalaram Bapa and/or his family members and their direct descendants without the consent of the plaintiff. In the said Suit plaintiff has taken out Notice of Motion below Exh.6 and 7 for interim injunction.

3. It

is the case on behalf of the plaintiff that he is the direct descendant of late Shri Jalaram Bapa of Virpur. Shri Jalaram Bapa was known for his charitable works during his life time and even after his death. His main charitable activities consisted of feeding the poor and hungry in Virpur. It is the case on behalf of the plaintiff that at present he is residing in the same house once occupied by late Jalaram Bapa as his residence. The devotees of late Jalaram Bapa are allowed to visit his residence in Virpur to pay their respects. It is the case of the plaintiff that in the past efforts were made by certain persons to stage a drama on the life of late Jalaram Bapa. Late Girdharram Bapa Chandrani, who happened to be the grandfather of the plaintiff raised objections against such drama on the life of late Jalaram Bapa and due to such objections raised by him, the efforts to portray life of late Jalaram Bapa in any drama or any other artistic and literary from were dropped. It is the case on behalf of the plaintiff that vide letter dated 27.08.2006 by defendant no.1 addressed to the plaintiff, defendant no.1 declared his intention to make a film portraying the life and good deeds of late Jalaram Bapa and defendant no.1 sought blessings of the plaintiff and also requested to provide information about late Jalaram Bapa. Accordingly plaintiff immediately responded by writing a letter on 01.09.2006 clearly stating that there are legal objections against any person playing the role of late Jalaram Bapa or the members of his family, live or dead and that plaintiff do not consent to the proposed action of defendant no.1. Accordingly plaintiff requested defendant no.1 to stop making the film on the life of late Jalaram Bapa. It is the case on behalf of the plaintiff that defendant no.1 responded by writing a letter dated 04.10.2006 contending inter-alia that late Jalaram Bapa was a public person / personality and that no consent is necessary for making a film of his life in view of his public persona. As per plaintiff defendant no.1 stated that he do not seek consent from the plaintiff but merely solicits his blessings and cooperation. It appears that thereafter there were correspondence between plaintiff and defendant no.1. According to the plaintiff, despite his objection in writing as well as orally, defendant no.1 acted contrary to his own promise given in the meeting held on 30.11.2006 and he has decided to make a film on the life of late Jalaram Bapa and one news item has appeared in local newspaper. It is the case of the plaintiff that strong protests were raised against the making of such film by defendants by issuing press note in the same newspaper. As averred in the plaint, public of Virpur observed a voluntary Bandh protesting against the making of the film by defendant nos.1 and 2 on 05.01.2007. There were strong protest by devotees of late Jalaram Bapa and they decided to intensify their efforts to prevent defendant nos.1 and 2 from making such film and entire situation became serious and threatened disruption of law and order in several parts of Saurashtra including Virpur. According to plaintiff despite about defendant no.1 was to resume shotting of the film on the life of late Jalaram Bapa. Therefore, plaintiff filed aforesaid Suit with aforesaid prayers.

4. It

was also averred in the plaint that life of late Jalaram Bapa though devoted to charitable activities, is still a private / personal affair for his direct descendant and legal heirs including the plaintiff and the same cannot be misappropriated by any third party including the defendants for the purpose of making a film or otherwise and thereby derive commercial / monetary advantage without the consent of plaintiff. It was specifically averred that plaintiff has right of privancy or a right to be let alone under Article 21 of the Constitution of India. That they have the right to safeguard their privacy, their family's privacy and the history relating to their ancestors. None can publish anything, whether truthful or otherwise and whether laudatory or critical about the life of late Jalaram Bapa without consent of the plaintiff and other direct descendants. It is not possible to depict or portray the life of late Jalaram Bapa without depicting or portraying life of his family members including children and grand children. It is further averred that in view of their right of privacy and their right to be let alone, no publication can be made which would involve matters/ details regarding their life without their consent.

5. Interim

injunction application was opposed by defendants. It was specifically contended that plaintiff is not direct descendant of late Jalaram Bapa and has no locus standi whatsoever to file present Suit. It was further submitted that previously the film named 'Sant Shiromani' was made wherein nobody had played role of late 'Bapa' and the film was permitted to be released. It was submitted by defendants that they have authentic record to make film and that the life of 'Bapa' is world wide known fact. It was submitted that defendants have right to make film since 'Bapa' was well known figure and has worked in public domine. That learned Chamber Judge City Civil Court, Ahmedabad after considering rival submission made by the learned Advocates for the respective parties, by impugned order allowed Notice of Motion Exh.6 and 7 and granted injunction against defendants as prayed for restraining defendants from from making, releasing, publishing, exhibiting, publicly or privately selling, promoting or advertising or entering into film festivals or in any manner producing in any format film, drama, serial or any other literary or artistic expression in respect of the life of Shri Jalaram Bapa and /or his family members and their direct descendants without the consent of the plaintiff till final hearing and disposal of the Suit. Being aggrieved and dissatisfied with the impugned order dated 15.06.2007 passed below Exh.6 and 7, appellants original defendants have preferred present Appeal from Order.

6. Ms.Sonia

Hurra, learned Advocate appearing for the appellants herein original defendants has vehemently submitted that order passed by the learned trial Court is ex-facie arbitrary, unfair, unreasonable. It is submitted that learned trial Court has materially erred in considering information relating to life of late Jalaram Bapa as belonging to plaintiff's alone and any disclosure thereof by third party amounts to violation of plaintiff's right to privacy. Learned Advocate for the appellants has submitted that plaintiff is not direct descendant of late Jalaram Bapa as late Jalaram Bapa had no son. Plaintiff is great grandson of daugther's grandson of Jalaram Bapa, therefore, 5th degree down the line. Thus, plaintiff has no locus standi to file the suit. It is submitted that there is no proof that Shri Harirambhai was adopted son of late Jalaram Bapa. It is submitted that under the Hindu Adoption and Maintenance Act, there has to be adoption as per Act, meaning thereby there should be giving of son by parents to the adopting parents. It is submitted that there is no proof of adoption on record of trial Court. It is submitted that Harirambhai started calling himself as adopted as per law. Accordingly, plaintiff cannot say that his great grandfather Shri Harirambhai was adopted by his great grandfather late Jalaram Bapa. Therefore, it is submitted that plaintiff has no locus standi and hence has no right to claim or protect right of privacy of late Jalaram Bapa. It is submitted that only because plaintiff is living in the house of late Jalaram Bapa, he cannot say that he is adopted son of Bapa, in absence of legal and valid adoption as per Hindu Adoption Act.

7. It

is further submitted by Ms.Hurra, learned Advocate for the appellants that even plaintiff cannot say that he has intellectual property right on the life story of late Jalaram Bapa. It is submitted that learned trial Court has not considered voluminous material / evidence on the record relating to life of Bapa, such as in the form of books such as Bhakt Shri Jalaram; Jalaram Jyot; Shree Jalaram Tirth Nirmal Pushya nain purnu; Bhakt Shree Jaoaram Bapa Ramanlal Soni, photographs of paintings on the life sketch of Bapa on the walls and roof of Dharamashala at Virpur which are being seen by all devotees who stay in the said Dharamshala. From the aforesaid it can be said that life of Jalaram Bapa is available in the aforesaid public record. It is submitted that even articles written by various persons are available on internet by anyone about the life story of late Jalaram Bapa. Therefore, it is submitted that in the fact of abundance of literature openly sold and in existence in the form of books, articles known to world at large, life story of Jalaram Bapa cannot be claimed by fifth descendant on the line as plaintiff that he has property rights on the life story of Bapa and plaintiff cannot say he is protecting right to privacy of Bapa.

8. Learned

Advocate for the appellants herin original defendants has heavily relied upon decision of the Hon'ble Supreme Court in the case of R.Rajagopal @ R.R.Gopal and Anr. v/s. State of Tamil Nadu reported in (1994) 6 SCC 632.

Relying

upon aforesaid decision it is submitted that right to privacy cannot be availed by plaintiff who has no locus standi to file the suit, he cannot claim right to privacy over the life of saintly figure as Saint Jalaram; his life story does not fall under exception carved out by Hon'ble

Supreme Court. It is further submitted that if life of prisoner who had committed murder, which affected several high profile officials, did not amount to invasion of right to privacy, then in the present case, it is life of a saint which can lead the public to good path in present era leading life to the service of human being especially poor and needy.

9. It

is further submitted that even defendants have obtained censor certificate after script was produced before the authority and has been granted certificate as there were no objectionable features in the film. It is further submitted that as such no consent from plaintiff is required when person becomes public figure and their life story is written in the form of book. It is submitted that when a person acquires status of saint, after hundred years or more, books, articles, movie exists means there is public record. Therefore, there is no violation of right to privacy which is engrained in right to

life in Indian Constitution. It is further submitted that when learned Trial Court has granted interim injunction which can be said as principle relief it was not warranted. It is submitted by Ms.Hurra, learned Advocate for the appellants that plaintiff has no locus standi to file suit as being not direct descendant of late Jalaram Bapa. It is submitted that there is no prima facie case made in favour of the plaintiff as life of Bapa is no secret, not private, but enough public record is there. It is submitted that even balance of convenience is in favour of appellants herein original defendants as he has invested more than 60 lacs on making the movie which is restrained to be released while other movie is released way back in 1995 with artists performing as Bapa and not mere bhajan kirtan only. It is submitted that if injunction as prayed for is not granted, no irreparable injury will be caused to the plaintiff on the other hand it is defendants / appellants who will suffer irreparable loss and injury. Therefore, it is requested to allow present Appeal from Order by allowing / permitting appellants herein original defendants to release movie on the life of late Jalaram Bapa on any suitable condition that may be imposed by this Court such as placing a declaration before the start of movie to the effect that this is a fiction story and it is not related to any person, individual, cast, community, character, place and does not bear any resemblance to any living or dead. By making above submissions, it is requested to allow present Appeal from Order.

10. Appeal

from Order is opposed by Mr.Mihir Thakore, learned Senior Advocate for the defendant herein original plaintiff. It is submitted that original plaintiff has sufficient locus standi to maintain the suit as he is direct descendant of late Jalaram Bapa. He has relied upon family tree of late Jalaram Bapa. Relying upon aforesaid family tree (page 40), he has submitted that it shows that original plaintiff is

direct descendant of late Jalaram Bapa and that Harirambhai was adopted by late Jalaram Bapa. It is submitted that since this is a very old event, even before the death of late Jalaram Bapa in 1881, the actual evidence of adoption may be very difficult. It is submitted that all the living persons at the relevant time are surely dead by this time. It is further submitted that however such adoption is amply corroborated by various documents which refer to Hariram Jalaram. Such documents are in the nature of sale deed and even public records where the name of Hariram appears. Therefore, it is submitted that plaintiff has sufficient prima facie evidence to show that Hariram was adopted by late Jalaram Bapa and that the world knew and accepted Hariram as the son of late Jalaram Bapa. It is submitted that Hariram was no stranger to late Jalaram Bapa and he was grandson of daughter of late Jalaram Bapa. Therefore, even independently of the question of adoption, the plaintiff is the direct descendant of late Jalaram Bapa. Therefore, it was submitted that original plaintiff has locus standi to maintain Suit. It is further submitted that even defendants also wrote letters to the plaintiff in connection with the film which shows that appellants accepted, by conduct that the respondent original plaintiff is the true legal heir of late Jalaram Bapa at present. It is submitted that independently of the question whether consent is required or not, which is to be decided in the present proceedings, the very fact that the appellants wrote letters to the respondent is sufficient to establish the locus standi of the respondent original plaintiff. It is submitted that appellants herein original defendants are estopped from questioning locus standi of the respondent. It is submitted that once it is established that plaintiff has locus standi to maintain suit, right of privacy as recognized by the Hon'ble Supreme Court cannot be denied to the respondent herein original plaintiff. It is submitted that life story of late Jalaram Bapa in the shape of a movie cannot be

depicted without the consent of the respondent. It is submitted that even if the appellants claim that late Jalaram Bapa is worshiped as a saint by the followers, still it does not take away the right of privacy available to the respondent original plaintiff. It is submitted that late Jalaram Bapa cannot be compared with other legendary or historical figures. Therefore, it is submitted that appellants cannot defeat the proceedings of the respondent on the ground that the film have been made on Gandhi, Nehru, Bose and other politicians or legendary figure like God Ram, Hanuman and others.

11. Mr.Mihir

Thakore, learned Senior Advocate for the respondent original plaintiff has submitted that plaintiff has based his action on two distinct rights i.e. right of privacy and right of publicity. It is submitted that plaintiff has not based the action of passing off nor has claimed any intellectual property right on the life story of late Jalaram Bapa. It is submitted that such rights are recognized by the Hon'ble Supreme Court in the case of R.R.Rajagopal v/s. State of Tamil Nadu reported

in AIR

1995 SC 264 : 1996 (6) SCC 632.

Mr.Thakore, learned Senior Advocate has relied upon para -9,20 and 28 of aforesaid decision. Mr.Thakore, learned Senior Advocate for the plaintiff has submitted that defendants have claimed before the lower Court that they have based their film on the book written by Saubhagyachand Rajdev on late Jalaram Bapa. It is submitted that therefore, the question before the lower Court was whether book written by Saubhagyachand Rajdev was based on any public record. It is submitted that the term 'public record' has a limited connotation. It is submitted that everything published about a person does not become a public record or pass into the public domain. Mr.Thakore, learned Senior Advocate has relied upon section 74 of the Evidence Act, 1872 and Section 2(e) of Public Records Act, 1993. In support of above submission, he has also relied upon observations made by the Delhi High Court in the case of Phoolan Devi v/s. Sekhar Kapoor & Ors.

reported in 1995

PTC 46 (Delhi High Court).

Mr.Thakore, learned Senior Advocate has further submitted that plaintiff is entitled to object to the making of film even though the respondents may not have taken specific objections to the publication of the book by late Saubhagyachand Rajdev. It is submitted that it does not preclude respondent from raising objections against the making of the film. It is submitted that book by late Saubhagyachandra Rajdev was his personal initiative and was not commissioned by heirs of late Jalaram Bapa. Mr.Thakore, learned Senior Advocate has relied upon following finding of the judgment in the case of Commissioner of Income Tax v/s. Shri Giridhar Hariram Bhagat reported in 1985

ITR (154) 10.

The necessary and

relevant facts leading to these two references may be briefly stated as under : The assessee is an individual and is a direct descendant of one we known and renowned saint in Saurashtra area in particular and Gujarat in general, known and fondly called as Jalarambapa. The assessee is the son of Hariram, who was the daughter's son's son of the said Jalarambapa and was adopted by him... (at p.13)

(1) There was no

material to hold that in publishing his books on Shri Jalarambapa, the said Shri S.M.Rajdeo was acting at the behest or at the instance of the assessee with a view to popularize the place of Shri Jalarambapa to enable the assesses to earn income.

(7) The place of Shri

Jalarambapa is not a temple in the accepted sense of the term and at best it can be described as a shrine for the sacred memory of Bhakta Shri Jalaram'

(8) Shri Jalarambapa

was not considered by anybody as a God or his representative and was recognized only as a saintly person and a realized soul

He

has further submitted that even there is no authentic contemporaneous record available to verify the incidents narrated in the said book. Therefore, it is submitted that any film based on such book is nothing short of a fictionalised biography of late Jalaram Bapa and this exercise is not permissible without consent of respondent.

12. Now

so far as reliance placed upon film 'Sant Shiromani' is concerned, it is submitted by Mr.Thakore, learned Senior Advocate that in the said film no one played character of late Jalaram Bapa and the film was merely allowed to use the photographs. It is submitted that contents of such film and script are not record. It is submitted that as against that the arbitration award is on the record which clearly imposes a limitation of the nature indicated above. Therefore, it is submitted that release of such film does not amount to waiver of the right of the respondent.

13. Mr.Thakore,

learned Senior Advocate has relied upon following decisions in connection with right of publicity :-

ICC

Development (International) Ltd. v/s. Arvee Enterprises reported in 2003 (26) PTC 245 (Delhi).

Martin

Luther Kind v/s. American Heritage Products reported in 216 USPQ 711 (Georgia Supreme Court).

Zacchini

v/s. Scripps Howard Broadcasting Company reported in 205 USPQ 741 (Supreme of the United States).

14. Relying

upon aforesaid decisions, it is submitted that right of publicity is distinct right separate from the right of privacy. No one can exploit the personality of late Jalaram Bapa without the consent of the legal heirs. Such right of publicity is akin to a property and the same is both, transferable and heritable. It is submitted that as no one can sell their products by using the photographs of leading cricketers or film stars without their consent. Similarly, no one can make a film on the life of such iconic figure like late Jalaram Bapa and exploit them commercially without the consent of the concerned individual or the legal heirs.

15. Mr.Thakore,

learned Senior Advocate has relied upon decision of the Hon'ble Supreme Court in the case of Wonder Ltd. v/s. Antox India Pvt. Ltd. reported in 1990 Suppl. SCC 721. in

support of his submission that when learned trial Court has exercised discretion judiciously, same is not required to be interfered with by this Court and substitute its own discretion. It is submitted discretion exercised by the learned Appellate Court is neither perverse nor arbitrary, this Court may not interfere with the same. It is submitted that it is held by the Hon'ble Supreme Court in the case of American Home Products Corpn. v/s. Mac Laboratories reported

in AIR 1986 SC 137 on the proposition of law as to whether the foreign precedents would be applicable in India, more particularly para 63 of said judgment.

16. Now so far as

reliance placed upon certificate issued by Censor Board, it is submitted by Mr.Thakore, learned Senior Advocate for original plaintiff that defendants are not seeking any permission from this Court to release the film as defendants have given Undertaking to the Censor Board that they shall not release the film till final disposal of Civil Suit No.207 of 2007. It is submitted that even on the proposed declaration that this story is a fiction story and it is not related to any person, individual, caste, community, character place and does not bear resemblance to any living or dead, film cannot be permitted to be released. Therefore, it is requested to dismiss present Appeal from Order as decision of the learned Trial Court is neither perverse or arbitrary.

17. Heard

the learned Advocates for the respective parties.

18. At

the outset it is required to be noted that original plaintiff instituted Civil Suit No.207 of 2007 in the City Civil Court at Ahmedabad for declaration and permanent injunction restraining appellants herein original defendants from from making, releasing, publishing, exhibiting, publicly or privately selling, promoting or advertising or entering into film festivals or in any manner producing in any format film, drama, serial or any other literary or artistic expression in respect of the life of Shri Jalaram Bapa and /or his family members and their direct descendants without the consent of the plaintiff. Plaintiff is claiming that he is direct descendant of late Jalaram Bapa who was known for charitable work during his life time and after his death. It appears that plaintiff has based his action on two distinct rights i.e. right of privacy and right of publicity. According to the plaintiff right of privacy flows from Article 21 of Constitution of India and same is part of right to life. It is the case on behalf of the appellants herein original defendants that plaintiff has no locus standi to maintain the Suit for declaration and injunction. However, it is the specific case on behalf of the plaintiff that he is direct descendant of late Jalaram Bapa. It is the case on behalf of the plaintiff that his forefather Hariram was adopted by late Jalaram Bapa and the actual evidence of adoption may be difficult since, it is a very old event and even before the death of late Jalaram Bapa in 1881, such adoption is amply corroborated by various documents which refer to Hariram Jalaram. Number of documents are produced in the nature of sale deed and even public records where the name of Hariram appears. It is the case on behalf of the plaintiff that even otherwise Hariram was no stranger to late Jalaram Bapa as he was grandson of daughter of late Jalaram Bapa. Therefore, even independently, plaintiff is claiming direct descendant of late Jalaram Bapa. Family tree as per plaintiff is as under :

Late

Shri Jalaram Bapa s/o Shri Pradhan Bapa

Shri

Jamnaben (daughter)

Shri

Kalabhai (son)

Shri

Harirambhai (adopted son of Shri Jalaram Bapa)

Shri

Girdharrambhai (son) Shri Vrajlalbhai (son)

Jaishukrambhai Natvarlal

Rasiklal Three daughter

Raghurambhai Kirtiben

Shilaben Bharatbhai

(son) (daughter)

(daughter) (son)

(org.Plaintiff)

19. Even

it is the case on behalf of the plaintiff that in view of judgment in the case of Commissioner of Income Tax v/s. Shri Giridhar Hariram Bhagat reported in 1985

ITR (154) 10, son

of

said Hariram i.e. Giridhar has been shown to be direct descendant of late Jalaram Bapa. Thus, locus standi of the plaintiff stands proved as direct descendant of late Jalaram Bapa. Therefore, considering various documentary evidences produced on record vide mark 40/1 to 40/8 and decision of the High Court, prima faice it cannot be said that plaintiff has no locus standi at all to institute the Suit and pray for injunction. Atleast in view of aforesaid documentary evidence, same is triable issue and same is required to be considered on leading appropriate evidence and on appreciation of evidence. Therefore, plaintiff has prima facie established that he has right to institute the Suit for injunction. Now in view of aforesaid prima facie finding with respect to locus standi of the plaintiff to institute the Suit for injunction, next question posed for consideration of this Court is whether plaintiff is entitled to the injunction as prayed for during the pendency of Suit or not?.

20. As stated above,

plaintiff has based his action on two distinct rights i.e. right of privacy and right of publicity, which according to the plaintiff right of privacy flows from Article 21 of the Constitution of India and is part of right to life. According to the plaintiff said right of privacy is recognized by the Hon'ble Supreme Court as part of right of life in the case of R.Rajgopal (supra). It is the case on behalf of the plaintiff that they honestly and bonafidely believe that there should be no portray of life of late Jalaram Bapa in the shape of drama or film or any other artistic or literary expression as there is no authentic record of the acts and deeds of late Jalaram Bapa kept during his life and /or surviving today on the basis of which such portrayal can be made and in absence of any authentic record of the actions of late Jalaram Bapa and in absence of any autobiography or authorized biography of late Jalaram Bapa being available. It is the case on behalf of the plaintiff that life of late Jalaram Bapa, though devoted to charitable acitivities is still a private / personal affair for his direct descendant and legal heirs including the plaintiff and the same cannot be misappropriated by any third party including the defendants for the purpose of making a film or otherwise and thereby derive commercial / monetary advantage without the consent of plaintiff. It is the case on behalf of the plaintiff that earlier also when efforts were made, same was objected and there was arbitration / lavad.

21. On the other hand it

is the case on behalf of the defendants that there are number of voluminous material / evidence on the record relating to the life of late Jalaram Bapa freely available for information and knowledge of the public at large viz. (i) publication of book 'Bhakt Shri Jalaram written by Rajdev published in the year 1952 1953; (ii) Release of film on the life of late Jalaram Bapa called Sant Shrimani (iii) publication of magazine called Jalaram Jyot; (iv) photographs of paining on the life sketch of Bapa on the walls of Dharamshala at Virpur which are being seen by all devotees who stay in the said Dharmashala; (v) detail informing regarding life of late Jalaram Bapa available from internet; (vi) judgment of the Court referred in the case of Commissioner of Income Tax (Supra) discussing various aspects relating to late Jalaram Bapa and lastly certificate issued for release of appellant's film Jai Jalaram by Central Board of Film, Government of India. Therefore, it is submitted that in view of above, life story of Jalaram Bapa cannot be claimed as proprietary right and plaintiff cannot say that he is protecting right of privacy of late Jalaram Bapa. It is the case on behalf of the defendants that learned Jalaram Bapa was public figure who acquired status of saint, after hundred years or more books, articles etc., there cannot be violation of right to privacy as sought to be contended on behalf of the plaintiff. Plaintiff has disputed whatever is stated in the book 'Bhakt Shri Jalaram' written by one Rajdev which is based upon which defendants want to make film on the life of late Jalaram Bapa. They are also disputing that said book can be said to be public record. It is the case on behalf of the plaintiff that there is no authentic contemporaneous record available about incidents narrated in the said book and therefore, it is the case on behalf of the plaintiff that any film based on such book is nothing sought of fictional biography of late Jalaram Bapa, which is not permissible. It is to be noted that Suit is for declaration and permanent injunction restraining defendants from making or releasing any film on the life of late Jalaram Bapa of Virpur.

22. Considering above

contentions and submissions made on behalf of the respective parties, it appears to the Court that there are very serious triable issues which are required to be considered and dealt with at the time of trial on leading appropriate evidence and on appreciation of evidence. There are many contentious issues which are required to be considered such as locus standi of the plaintiff to institute the Suit for injunction; whether plaintiff has right of privacy as alleged; whether documentary evidence on record relied upon by the defendants can be said to be public record on the life of late Jalaram Bapa of Virpur; whether there are any authentic record available on the life late Jalaram Bapa of Virpur or with respect to incidents / miracles as mentioned in the book 'Bhakt Shriomani'. All the aforesaid aspects are required to be considered in detail on leading appropriate evidence and therefore, in the meantime if injunction as prayed for is not granted, there will be irreparable loss caused to the plaintiff and his family members and/or heirs of late of Jalaram Bapa of Virpur. It appears to the Court that once film is released, even if subsequently plaintiff succeeds in the Suit in establishing his right of privacy on the life of late Jalaram Bapa of Virpur, in that case, whatever damage caused to the plaintiff, same cannot be compensated in any manner or form. It prima facie appears that right to privacy and right to publicity cannot be compensated in terms of money. Under the circumstances, this Court is of the opinion that this is a fit case to continue injunction in favour of the plaintiff restraining defendants from making film, releasing and/or exhibiting any film on the life of late Jalaram Bapa of Virpur till final disposal of the Suit.

23. Now so far as

reliance placed upon film 'Sant Shrimani' by the defendants, it is to be noted that at that time also making of film on the life of late Jalaram Bapa was objected by grandfather of the plaintiff i.e. Giridhar Hariram in the year 1963. Dispute was referred to arbitrator and there was award declared by the arbitrator. Even in the said film no one was permitted to play character of late Jalaram Bapa and film was merely allowed to use photographs. It is to be noted that neither film 'Sant Shiromani' nor script of 'Sant Shiromani' is produced by the defendants before the lower Court and/or even before this Court. Even Arbitration award imposed contain limitations.

24. Learned Advocate for

the plaintiff has relied upon number of decisions in support of their claim of right to privacy and in support of their claim that no one can exploit personality of late Jalaram Bapa or his legal heirs. Therefore, further question which is required to be considered is whether film can be made on the life of late Jalaram Bapa of Virpur; same can be permitted to be released or permitted to be exhibited without consent of the descendant of late Jalaram Bapa of Virpur i.e. legal hiers.

25. Considering aforesaid

facts and circumstances of the case, contentious issues which are to be considered and dealt with at the time of trial on leading appropriate evidence and on appreciation of evidence orally as well as documentary, question of granting injunction during the pendency of Suit in application under Order 39 Rule 1 and 2 is required to be considered. It cannot be disputed that while considering grant of injunction under Order 39 Rule 1 and 2 of CPC, the Court is required to consider prima facie case; balance of convenience and irreparable loss. In the present case, it appears to the Court that if injunction as prayed for is not granted, there will be irreparable loss caused to the plaintiff, which cannot be compensated in terms of money. If injunction is not granted, defendants shall make, publise and release film on the life of late Jalaram Bapa and if Suit is allowed in that case whatever damages to be caused same cannot be compensated in terms of money.

26. Under the

circumstances, as observed herein above this Court is of the opinion that this is a fit case to grant injunction restraining defendants from making, exhibiting, releasing film in any manner on the life of late Jalaram Bapa till final disposal of the Suit. However, learned trial Court is to be directed to decide and dispose of the Suit at the earliest as it is the case on behalf of the defendants that they have invested huge amount on making film.

27. Now so far as the

contention that defendants have invested huge amount on making film is concerned, it is the case on behalf of the plaintiff that from the very beginning the plaintiff objected to and there were various discussions and negotations also, still defendants went on making film and invested huge amount for which defendants themselves are responsible. Now so far as contention on behalf of the defendants that they have got certificate from Censor Board, it is to be noted that affidavit in reply is filed by Officer of Censor Board of Film Certification in Civil Suit No.1039 of 2009 in which it is specifically stated that on receiving legal notice dated 01.12.2008 from the advocate of the plaintiff with a request to the authority to cancel certificate along with application for interim in Civil Suit No.207 of 2007; authority vide letter dated 23.12.2008 requested defendants to surrender said Censor Certificate issued to the film 'Jai Jalaram'. In regard, authority has received reply vide letter dated 11.05.2009 from the defendant stating that till final disposal of Civil Suit No.207 of 2007, they will not release the said film in any territory. Thus, when defendants themselves communicated to the Censor Board that they will not release the film on the basis of certificate issued to the film 'Jai Jalaram' till final disposal of Civil Suit no.207 of 2007, they cannot rely upon said censor certificate and request for release of film even during pendency of Civil Suit on the basis of aforesaid certificate.

28. In view of the

contentious issues to be determined and decided by the learned trial Court, this Court is not further discussing various decisions relied upon by the respective parties as it may prejudice case of either parties at trial. Suffice it to say that this is a fit case to continue injunction granted by the learned trial Court more particularly for the reasons stated above.

29. In view of above

facts and circumstances of the case and finding no case is made to interfere with the impugned order passed by the City Civil Judge, Ahmedabad granting injunction in favour of plaintiff and against defendants restraining appellants herein original defendants from releasing film in any manner whatever on the life of late Jalaram Bapa of Virpur till final disposal of the Civil Suit. Learned Judge of City Civil Court, Ahmedabad has not committed any error and /or any illegality in granting injunction and allowing notice of motion in favour of the plaintiff. Under the circumstances, present Appeal from Order deserves to be dismissed and accordingly it is dismissed. However, there shall be no order as to costs.

30. In the facts and

circumstances of the case and nature of controversy and dispute in the Suit, it is desirable that Civil Suit No.207 of 2007 pending in the City Civil Court, Ahmedabad is finally disposed of at the earliest. Under the circumstances, concerned learned Judge is hereby directed to decide and dispose of Civil Suit No.207 of 2007 at the earliest but not later than 30th June, 2011. All concerned are directed to cooperate learned Judge in early disposal of Civil Suit No.207 of 2007 at the earliest and within stipulated time as stated above. If pleadings are not completed, parties to complete pleadings within a period of 6(six) months from today.

In view of dismissal of

Appeal from Order, no order in Civil Application.

[M.R.Shah,J.]

satish

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