Issues

• Whether Order XXXIX Rule 1, 2 & 4 of CPC is

applicable or not?
• Whether there has been a concluded
contract?
• Whether Sections 2(q) and 2(qq) of Copyright
Act apply?
• Whether Performer’s Rights (Section 38 of
Copyright Act) is applicable in the particular
case?
 Issue 1
• Order 39 Rule 1 says that where in any suit it is proved by affidavit or otherwise—
 that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any
party to the suit, or wrongfully sold, the court may grant a temporary injunction to restrain such
act, or make such other Order for the purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property or dispossession of the plaintiff, as the court
thinks fit, until the disposal of the suit or until further orders.
• Rule 2 further says that –
 In any suit for restraining the defendant from committing a breach of contract or other injury of any
kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the
commencement of the suit, and either before or after judgment, apply to the court for a temporary
injunction to restrain the defendant from committing the breach of contract or injury complained
of, or any breach of contract or injury of a like kind arising out of the same contract or relating to
the same property or right.
• In the present case, as the defendants did not offer any apology and proper acknowledgment to the
plaintiff, the plaintiff instituted the present suit and filed the application under order XXXIX rules 1
& 2 for an ad interim injunction. Moreover, the court had earlier granted an ex parte ad interim
order in favor of the plaintiff and against the defendants restraining the defendants, their dealers,
distributors, stockists and all other persons acting on their behalf from in any manner using, selling,
distributing, exhibiting, advertising the motion picture as well as cassettes, CDs, promos of the film
"Aryan - Unbreakable" containing the song "Ek Look Ek Look" without displaying the name of the
plaintiff as a female singer.
• The order was passed ex parte because the plaintiff has been able to show prima facie that the
song titled "Ek Look Ek Look" does contain the recordings of the plaintiff as recorded by the
defendants in the studios. It is, however, sought to be stated in the said reply on behalf of the
defendant No.1 that, out of the document filed, during the process where the recording of the song
was being mixed, the Sound Engineer, inadvertently overlapped the audition recordings of the
plaintiff with those of the defendant No.2's recording. It is further stated in the said reply that the
said inadvertence of the Sound Engineer was also carried to the printer, who, on the said basis,
printed the name of the plaintiff in the inlay card also. Thus, it clearly comes out from the said reply
that, whether it was a mistake or it was intentional, the voice of the plaintiff does find place in the
song and, therefore, due recognition for this aspect must be given to her. Therefore, the said ex
parte order was passed.
• Thereafter, the defendants filed an application under Order XXXIX Rule 4 of the Code of Civil
Procedure, 1908 for vacating the said ex parte order. However, the court was of the view that this
particular rule cannot be applied in the present scenario as the plaintiff had an upper hand and
granting of injunction was an appropriate remedy rather than setting it aside and going for
monetary compensation.
• Thus, the applicability of Rule 1 & 2 of the particular order is of paramount importance because the
granting of injunction only made it possible for the plaintiff to maintain her reputation and also
allowed appropriate credits to be given to her for the services rendered in the film. Therefore, Rule
4 of the said order shall be said aside as the injunction granted was not of vexatious nature and was
required to meet the ends of justice.
• This was also highlighted in the case of Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V.,
S.P.A. [1991 Supp (2) SCC 3], where the appellant filed a suit for specific performance and also filed
application for interim injunction under Order XXXIX Rule 1 & 2. However, while the suit was taken
up in the court, the production went further and completed the major part of the film and no
credits were given to the appellant. The High Court was of the view that the remedy of
compensation was appropriate in this circumstance. But, when the matter came up before the
Supreme Court, the judges held that the appellant did play some part in making the film possible
and that the respondents were acting unreasonably in denying him the benefit of the
acknowledgment he was entitled to have and thus injunction under the Order should have been
granted at the first place. Since that couldn't be made possible, the court decided to restrict the
scope of the interim relief and directed, in the interests of justice, that in case the film is proposed
to be, or is, exhibited either on the T.V. or in any other medium in India, it shall not be so exhibited
by the respondent or their agents unless it carries, in its title shots, an acknowledgment of the
services rendered by the appellant to the producers in some appropriate language.
• Thus, it can be said that the Order XXXIX does play an important role in such situations, as only
after interim injunction is granted in the first place, the court can go ahead with the case in an easy
manner and decide the case properly, considering all the details.