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2007 (10) TMI 702

..... Manoharan, Adv. ORDER P. Jyothimani, J. 1. The defendant in O.S. No. 5644 of 2007 is the revision petitioner. This Civil Revision Petition is directed against the order of the learned first appellate Judge, the VI Addl. Judge, City Civil Court, Chennai dated 12.10.2007 passed in CMP No. 1924 of 2007 in C.M.A. No. 104 of 2007 filed by the respondent in C.R.P., granting an order of interim injunction till 26.10.2007 against the revision petitioner from telecasting the tele-serial either in the name of "Maveeran Veerappan" or "Santhana Kadu" including its advertisement and trial version of tele-serial about the petitioner's husband Veerappan in any form. 2. This Revision is filed under Article 227 of the Constitution of India. The respondent has filed the suit for permanent injunction restraining the revision petitioner from publishing, broadcasting telecasting the serial "Maveeran Veerappan" and projecting the name, identity and interpretation of M. Veerappan in any form and in any name which relates to M. Veerappan or his life history and events without the plaintiff's written consent. The suit has been laid on the basis that such telecast about .....

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..... was as against the said considered order, the plaintiff has filed an appeal in C.M.A. No. 104 of 2007, which is pending on the file of the VI Additional Judge, City Civil Court, Madras. Pending the appeal, the plaintiff has moved C.M.P. No. 1924 of 2007 praying for an interim injunction as prayed for in the Trial Court. It was in that application, the first appellate Judge has granted the following order: In the trial court ex parte injunction granted from the date of filing petition to dispose of that petition i.e., from 14.09.2006 to 17.09.2007. Till date the film is not tele-casted. Hence the petitioner made out the prima facie case and if the telecast is postponed the respondent will be not prejudice. On the other hand if telecasted the petitioner apprehension will be ruined. Hence interest of justice, injunction is granted till 26.10.2007. Further arguments will be heard on 26.10.2007. 5. It is admitted across the Bar that this order was passed by the learned First Appellate Judge after hearing both the counsel for the petitioner as well as the respondent at length. On the face of it, it is seen that the learned First Appellate Judge having heard the case in full, has passed a .....

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..... and it is an abuse of process of law. He would also submit that in such circumstances when there is no privacy, the question of getting consent by the petitioner for the purpose of publishing does not arise. 8. On the other hand, Mr. Manoharan, learned Counsel for the respondent/plaintiff would vehemently contend that when the CRP under Article 227 of the Constitution of India is not maintainable, question of filing an application to convert CRP as that of CMA cannot be entertained. His contention is that when the revision petitioner is having an effective remedy of appeal, even if it is before this Court under Order 43 of CPC, he has to be directed only to go before the appellate Court and he cannot be permitted to argue the case under Article 227 of the Constitution of India. That apart, he would also rely upon the right of privacy. His contention is that as long as Veerappan was live, there was no privacy, because he was having the right to defend by himself. It was only after his death, (Veerappan died on 19.10.2004), the cause of action of privacy in respect of husbands life arose in favour of the plaintiff as well as her daughters and it was her duty to maintain the dignity .....

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..... l pending, it is necessary for me to deal with some of the aspects which are argued by both the counsel. 14. Both the learned senior Counsel for the petitioner as well as the learned Counsel for the respondent have relied upon the Judgment of the Supreme Court in R. Rajagopal alias R.R. Gopal and Anr. v. State of T.N. and Ors. reported in AIR1995SC264 . That was a case relating to one Auto Shankar, who was convicted for six murders and was sentenced to death, who had written autobiography in jail and handed over the same to his wife for being delivered to his advocate with a request to publish the same in the petitioner's magazine. When the said Autobiography was sought to be published, the issue arose as to whether a citizen of this country can prevent any person from writing his story or biography? and whether such unauthorised writing infringe the citizen's right to privacy? And also the issue arose in that case about the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India. In that case, while deciding the issue regarding right to privacy, the Supreme Court has observed that right to privacy arose from the law of Tort which results in damages .....

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..... s own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. 16. While concluding the said Judgment, the Supreme Court has held as follows: Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But, if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. 17. It is relevant to point out that both the learned senior Counsel for the revision petitioner as well as .....

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..... 20. Be that as it may, the question that has to be considered in this case is when the lower Court closing its eyes and especially after hearing both parties at length, passed an order in one line in a very sensitive matter, which was dealt with by the Trial Court in a detailed manner, whether this Court can only be a silent spectator having a right to superintendence over the lower Court's order under Article 227 of the Constitution and that is the crux of the issue which is involved in this case. 21. In Salem Co-operative Sugar Mills Limited, Mohanur, Namakkal District rep. By its Special Officer v. S. Kuppan reported in (2003)3MLJ436 (judgment delivered by P.D. Dinakaran, J.), while dealing with the jurisdiction of this Court under Article 227 of the Constitution of India, in respect of an order passed under Order 39 Rule 1 and 4 of CPC, against which an appeal lies as per Order 43 of the CPC, has held that High Court cannot be a silent spectator when the person seeking an order of injunction has approached this Court with unclean hands since there is a flagrant violation of equity and justice, powers under Article 227 can be exercised, in spite of the availability of the ri .....

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..... that the petitioner apprehends that she will be ruined without assigning any reason. 25. The powers of the High Court under Article 227 of the Constitution have come before the Supreme Court on many occasions. In the case of Surya Dev Rai v. Ram Chander Rai and Ors. reported in AIR2003SC3044 , the Supreme Court has held that the powers of the High Court under Article 226 and 227 of the Constitution of India cannot be tied down in a strait jacket formula. The relevant portion of the said Judgment reads as follows: Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though commit .....

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..... rietor and Anr. reported in 2007(1)CTC1 makes it very clear that the play writers and film writers are entitled to allude to incidents which have taken place and to present aversion of those incidents which according to them represents a balanced portrayal of social reality while dealing with the film Kutra Pathirikai. The relevant portion of the Judgment of the First Bench consisting of A.P. Shah, C.J., and K. Chandru, J. is as follows: The film "Kutra Pathirikai" is an intermingling of fact and fiction. The former being the events leading to the assassination of the late Prime Minister Rajiv Gandhi, the assassination itself and its aftermath. The producer has attempted to place before the public the true account of what has passed into history. He has done no more and no less than what has already been done by different organs of the media, national and international. The producer tells his audience without embellishment what in a democracy is the right of the audience and the general public viz., the right to be informed and the right to know, which are vital in a democratic set up. Each and every piece of evidence depicted in this film is a matter of public record and .....

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..... . Reasonable limitation can be put in the interest of sovereignty and integrity of India, the secrecy of the State, friendly relationship with foreign state, public order, decency or morality or in relation to contempt of court, defamation of incitement of an offence. 32. Further while concluding, the Division Bench following the Judgment of the Supreme Court in the case of R. Rajagopal, held that right to privacy has two aspects, namely, one the general law of privacy which results in an action for damages in tort and another the constitutional recognition which has given right against the Government in respect of matters of unlawful Government invasion. The Division Bench has elaborately discussed this aspect which is certainly a guideline, which reads as follows: 30. As observed in R. Rajagopal's case (Supra) the right to privacy has two aspects which are but two faces of the same coin. First the general law of privacy which offers a tort action for damages resulting from an unlawful invasion of privacy and secondly, the constitutional recognition given to the right to privacy which protects personal privacy against unlawful government invasion. Though the right to privacy c .....

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..... ry or critical. Therefore, if an article is purely relating to the personal life of a public official, it would be necessary for the member of the press or media to publish such article only after a reasonable verification of the facts. The position may, however, be different if a person voluntarily thrust himself or herself into a controversy or voluntarily invites or raises a controversy. In the circumstances, we direct the appellants that whenever they propose to publish any article purely concerning personal life of the first respondent or the second respondent or both, the appellants shall forward their queries and/or the gist of the proposed article, as the case may be, to the fax number furnished by the learned Counsel appearing for the respondents. The first respondent or the second respondent or both, as the case may be, shall respond to the queries of the appellants in relation to their proposed article to the fax number of the appellants. However, if there is no response to the queries either from the first respondent or the second respondent within 36 hours from receiving such queries, the appellants will be entitled to proceed to publish the proposed article in their b .....

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