DEVINDER GUPTA, J.

( 1 ) THIS is plaintiffs application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction restraining the defendants from offering to telecast and/or further telecasting any part/episode of tele serial MAHASHAKTI.

( 2 ) PLAINTIFF in the suit has claimed a decree for permanent prohibitory injunction restraining the defendants from offering for telecast and/or to telecast the tele serial MAHASHAKTI or any other tele serial under any other name, giving to understand and portraying the plaintiff as one of the artists thereof, leading or otherwise. In addition, injunction has also been claimed against defendants from telecasting the work of the plaintiff, alleged to have been obtained by them in full length feature film JANNAT/vada HAI MILAN KA for the purpose of tele serial MAHASHAKTI or any other tele serial.

( 3 ) IT is alleged that the plaintiff has worked only In cinematographic films and in full length feature films and has at no point of time worked in any tele serial since, according to the plaintiff, working for a tele serial is not considered good for the reputation and position of a film artist, whose cinematic-graph is on the rise. Plaintiff claims that her career graph has been on rise ever since the release of her first film QAYAMAT SE QAYAMAT TAK and presently is one of the top-most heroine of Indian film industry. It is alleged that towards the end of 1988 defendant No. 1 through defendant No. 2 approached the plaintiff and offered to give her the lead female role in their feature film intended to be produced and tentatively titled JANNAT along with the lead male artist Aditya Pancholi. It was represented to the plaintiff that Sharad Saran would be the Director and Anand Miland the Music Director of the film. On the basis of this representation and since it was to be a full length feature film, the plaintiff agreed to work for the lead role of heroine in the film.

( 4 ) TILL 31. 3. 1989 film was still under production stage and 12 reels had been completed. It was completed somewhere in December, 1990. It is alleged that defendants 1 and 2 at that stage decided to change the title of film from JANNAT to VADA HAI MILAN KA. On the completion of film, prints thereof were to be lifted after processing by the film laboratory and the same was to be released in the market for distribution and screening. A sum of Rs. 75,000. 00 was payable as balance fee by defendants 1 and 2 to the plaintiff for which, it is alleged that a letter was given to defendant No. 3, the film laboratory, to secure the payment of the plaintiff. In the letter it was stated that defendant No. 3 shall not part with or release the film to any one unless Rs. 75,000. 00 is paid to the plaintiff. On 1. 12. 1994, payment of Rs. 75,000. 00 by two demand drafts of Rs. 40,000. 00 and Rs. 35,000. 00 is alleged to have been made and at that time the plaintiff was given to understand by defendants 1 and 2 that they intended to change the title of the film to MAHASHAKTI. The plaintiff was asked that in case she had no objection to the same she should sign the confirmation upon a letter accepting the balance towards full and final payment of contractual amount of her fee which will take care of clearance of the account between the parties as well as release of film under the title MAHASHAKTI. Plaintiff accordingly signed the No Objection Certificate for the change of title of film from VADA HAI MILAN KA to MAHASHAKTI.

( 5 ) ACCORDING to the plaintiff, defendants 1 and 2, after completion, could not find any distributor to pay the costs of production of the film. Rs. 18 lakhs were due and payable to defendant No. 3 for processing and making the prints. As per allegations in the suit at this stage defendants 1 and 2 developed some malafide intentions with ulterior motive to cause a wrongful gain to themselves and wrongful loss to the plaintiff and misrepresented in 12th January 1995 issue of Bombay Eye, a film magazine, that the plaintiff and Aditya Pancholi had opted for small screen. Reading of the news came as a rude shock to the plaintiff, who had neither agreed to act, nor acted, nor intended to act in any tele serial titled MAHASHAKTI. News report further stated that both, the plaintiff and Aditya Pancholi would be seen in a forthcoming TV serial MAHASHAKTI to be aired on the Metro Channel of Doordarshan. According to the plaintiff, the news item also gave the name of Ashok Patki to be the person having given music to the tele serial and the same was stated to be directed by Deepak Sharma. Plaintiff never worked under both of them. In a nutshell, the plaintiffs case is that she has or had no intention and never agreed to work in tele serial MAHASHAKTI or any other tele serial in which direction is stated to have been given by Deepak Sharma with music by Ashok Patki. Due to the news item projecting the plaintiff to have opted for a small screen the plaintiffs entire film career is Jeopardised. She being the topmost heroine of Indian film industry never opted for a small screen. Projecting her to be an artist in a tele serial was going to further cause great harm and damage to her reputation and career prospects. It is claimed that she has received anxious calls and enquiries from friends and well wishers in the film Industry as to why she had taken such a drastic step which was a step forward in committing a career-suicide. Plaintiff states that on 20. 1,1995 a legal notice was got served on defendants 1 and 2 but despite service, it appears that defendants were still going ahead with their illegal and malafide action of telecasting the film. The film, according to the plaintiff, was slotted on every Friday commencing from 27. 1. 1995. Till the filing of suit on 14. 2. 1995, according to the plaintiff, three episodes had been telecast but without any major work role of the plaintiff shown on the screen except by showing her In one or two scenes In the introduction. In this background, the plaintiff has claimed a decree of injunction.

( 6 ) THE suit came up on 15. 2. 1995 when notice was directed to be issued to the defendants for 21st February, 1995. No reply has been filed by defendants 1 and 4 so far. Reply of the newly added defendant No. 5 is in the application moved for impleadment. The case of defendant No. 5 is that vide agreement dated 19. 5. 1994 It purchased the entire rights of the film produced by defendants 1 and 2 titled VADA HAI MILAN KA. Defendant No. 5 claims to be a bonafide purchaser of the picture for a valuable consideration of Rs. 75 lakhs. It is alleged that the agreement specifically says that the film would be converted into a tele serial tentatively titled as MAHASHAKTI. The agreement was entered into between defendant No. 5 and defendants 1 and 2 with the consent of the concerned artists Including the plaintiff although no consent under law is required to be obtained since artists have no right in the negatives and copyright of a film. According to the terms of agreement, defendant No. 5 is free to telecast the tele serial by using the prints of film VADA HAI MILAN KA In any manner or in any form. Plaintiff is alleged to have given her no objection for the conversion of the film into a tele serial in her receipt dated 1. 12. 1994 where according to defendant No. 5 she stated that she had no objection to the release of said project in "any form or manner as desired". Plaintiff with complete knowledge and of her own free will agreed to the conversion of feature film into a tele serial and is now estopped from making any grouse. Defendant No. 5 has also alleged that after it had acquired the rights from defendants 1 and 2 and after plaintiff had given her letter dated 1. 12. 1994, Intention of defendants 1 and 2 turned dishonest and they started demanding additional amount of Rs. 10 lakhs, over and above the amount agreed upon in the agreement dated 9. 5. 1994. This necessitated in defendant No. 5 filing a suit in Bombay High Court wherein an order of injunction was passed restraining defendants 1 and 2 from obstructing the release of tele serial by Doordarshan authorities. Defendants 1 and 2 did not oppose the grant of injunction in the said suit. Defendant No. 5 has further alleged that trailer of tele serial has been shown on the national network of Doordarshan 3 or 4 times everyday from 15. 12. 1994. First episode was shown on 27. 1. 1995. Suit has been filed belatedly with malafide intention to cause loss and harm to defendant No. 5. Knowing fully well that defendant No. 5 was the affected party, it was not impleaded as a defendant in the suit.

( 7 ) I have heard the learned counsel for the parties at length. The questions which arise for consideration is as to whether the plaintiff is entitled to the interim relief for which It has to be seen whether there is any prima facie case made out for grant of injunction and if injunction is not granted whether the loss and damage, if any, likely to be caused to the plaintiff would be such which it will not be possible to compensate and whether balance of convenience lies in favour of grant of injunction, namely, the comparative loss or damage likely to be caused in case injunction is not granted.

( 8 ) IT is not disputed that the plaintiff signed for a lead role of heroine in film JANNAT, which was to be directed by Sharad Saran with Anand Miland as Music Director. As per the certificate produced on record, the particulars of the film were:

1. NAME OF THE FILM : "jannat" 2. PRODUCER : D. N. PRODUCTION 3. DIRECTOR : SHARAD SARAN 4. WRITER : SHARAD SARAN and GULZAR 5. MUSIC : ANAND MILAND 6. LYRICS : MAJROOH 7. CASTE : ADITYA PANCHOLI JUHI CHAWLA SONU WALIA TALAT AZIZ GULSHAN GROVER VINOD MEHRA (GUEST) ALOK NATH ISHRAT ALI ANNU KAPOOR"

( 9 ) WHEN the name of film was changed from JANNAT to VADA HAI MILAN KA, the Director and Music Director remained the same, namely, Sharad Saran and Anand Miland respectively. In another certificate issued by the Film Information, as of 20. 2. 1991 the cast remained the same, namely, the plaintiff in the lead role of a female artist with Aditya Pancholi in the lead role of male artist. As per the agreement arrived at amongst defendants 1 and 2 with newly added defendant No. 5, the later acquired negative rights of the film VADA HAI MILAN KA. One of the conditions of the agreement is that defendant No. 1 will complete 26 episode along with the material of the feature film in which 8 episodes can be from the said material and may shoot another 18 episodes for completion of said serial titled MAHASHAKTI from the material of the film VADA HAI MILAN KA.

( 10 ) THE two news items published on or about 12. 1. 1995 says that the plaintiff and Aditya Pancholi are stated to have opted for the small screen for serial MAHASHAKTI being directed by Deepak Sharma music given by Ashok Patki.

( 11 ) FROM the facts stated and which are not in dispute one aspect is clear that T. V. serial MAHASHAKTI is to be an amalgam of the film VADA HAI MILAN KA with additional work which has or will have nothing to do with film VADA HAI MILAN KA From the terms of the agreement dated 19th May, 1994 between defendant Nos. 1 and 5 and from the stand taken by defendant No. 5 prima facie the T. V. serial MAHASHAKTI is not a reproduction of the entire film VADA HAI MILAN KA but it is something else other than the film JANNAT or VADA HAI MILAN KA. Clause 1 (c) of the agreement says "that the first party M/s D. N. Production will complete 26 episodes along with the material of the feature film and in which we can give 8 episodes from the said material and we have to shoot further 18 episodes for completion of said serial titled "mahashakti" from the material of the film "vada HAI MILAN KA". Thus, the serial in question is not the original work of director Sharad Saran and Music Director Anand Miland but something super-imposed thereupon with Director Deepak Sharma and Music Director Ashok Patki. One of the serious questions which has to be decided during the hearing of the suit will be as to whether the plaintiff ever agreed to work for any role in T. V. serial MAHASHAKTI with director Dalip Sharma and music given by Ashok Patki. According to defendant No. 5, plaintiff gave her consent for conversion of film VADA HAI MILAN KA into MAHASHAKTI in any form or manner. The only consent on which reliance is placed is the receipt dated 1. 12. 1994 which reads:

Date:01. 12. 94 Miss JUHI CHAWLA, BOMBAY. Dear Madam, Ref: Final remuneration amount of our project "maha SHAKTI". 1369 We are enclosing herewith a demand draft No. 106643 drawn on VIJAYA BANK VIRAR (WEST) Branch for Rs. 35,000. 00 (Rupees Thirty Five Thousand only) dated 20. 11. 1994 favouring your goodselves, which amount is the full and final amount of your contractual amount for rendering your services in our project "mahashakti", subject to the realization of the draft, it is hereby agreed that you hold no lien, charge or claim against the said project "maha SHAKTI", and that we are free to release the said project as and when and in any form or manner as we may desire. Your signature here under shall confirm the same. For D. N. PRODUCTIONS, sd/- Neeta Sharma I agree and confirm the above. sd/- (JUHI CHAWLA)"

(Emphasis supplied)

( 12 ) MUCH reliance has been laid on the words M/s D. N. Production "are free to release the project MAHASHAKTI as and when and in any form or manner" as they may desire. According to defendant No. 5, the said consent given for change of name of the full length film VADA HAI MILAN KA to MAHASHAKTI includes the consent to change the form or manner of the film also. Defendant No. 1 through this consent was free to have the full length film shown on a small screen and by virtue of the agreement defendant No. 5 is entitled to use the material of the film with additional work and have it screened as a TV serial. This contention cannot be accepted at this stage without any further evidence. Prima facie defendants will have no right to project the plaintiff in any manner whatsoever other than showing her to be in the lead role as a female artist in a full length film for which she has agreed. By virtue of this consent prima facie the defendants might get a right either to show it on a full length screen or even in a small screen or to have it screened under any other captioned name but not in a twisted manner or form. The plaintiff when agreed to work as a female artist in the leading role for the production of defendant No. 1 acquired some rights which may be said to have been conferred on her personally, not capable of being assigned. Defendant No. 1 as a film producer by virtue of the contract with the plaintiff got an exclusive right to make a record of the plaintiffs performance as an artist with a view to commercial exploitation, which right could be transferred or assigned by defendant No. 1 but not such of the rights which are conferred on plaintiff personally. Plaintiffs consent in the letter dated 1. 12. 1994 is for release of the project by defendant No. 1 in any form or manner. The same in the absence of any other evidence might be construed as an express consent in defendants favour for having the project screened or shown instead of as a full length film on a large screen by showing it as a TV serial In several episodes.

( 13 ) SHOWING the film VADA HAI MILAN KA as a TV serial MAHASHAKTI in various episodes without any change in the plaintiffs role will be the form or manner of release of the work. It is not in dispute that the TV serial MAHASHAKTI as it is now been shown is not exactly the same as the film VADA HAI MILAN KA but a modified form and a totally new work of defendant No. 5 in which only some of the material of film VADA HAI MILAN KA has been used and the remaining is or will be a fresh material with which the plaintiff has or had nothing to do. The modified form of plaintiffs performance quite different from the original performance is to be prima facie taken as a perversion of the original work. Right which can be said to have been conferred on an artist having agreed to work in any role is that his or her work will be shown as it is and not to be shown in a quite different context than the one for which he or she performed.

( 14 ) IN other words perversion of the original work for which an artist never intended to work cannot be publicised. In case the modified version is so different from the original work that the entire complexion of the story or theme is changed the question that might arise would be that had the work been in the modified form would the performer ever agree for such a story or theme The plaintiffs case is that she never agreed or intended to work for any TV serial MAHASHAKTI for which not only the caste is different but even Music Director is different.

( 15 ) HEAVY reliance is placed by defendant No. 5 on the plaintiffs interview stated to have been published on 15. 2. 1995 in film weekly "aar Paar, which is to the effect that the plaintiff had no objection for the film JANNAT being converted into a tele serial MAHASHAKTI by producer Deepak Sharma. The interview further states that Deepak Sharma had signed the plaintiff at the threshold and her career for which reason she did not want that Deepak Sharma should suffer any loss. In the same interview it is alleged that the plaintiff stated that present day television media has become more elaborate than films and since T. V. serial MAHASHAKTI was being telecast within and outside the country in a big manner therefore she did not think that by working in serial MAHASHAKTI there will be any bad effect on her image.

( 16 ) RELIANCE is also placed heavily by defendant No. 5 on the news item which appeared in Bombay Eye on 12. 1. 1995 to the following effect:

"Bollywood super stars Juhi Chawla and Aditya Pancholi have jumped over the lakshman Rekha at last. The both have been signed to play the lead roles in Saibaba Internationals TV serial "mahashakti" to be aired on Doordarshans Metro channel soon. This is the first time that commercially successful cinema actors have opted for the small screen. And to top it all, both Juhi and Aditya have full length roles in the mega serial, a spokesman for the producers said. The serial, being directed by Deepak Sharma has a powerful love story with normal doses of tear-jerking and melodrama, according to the producers. The cast include Alok Nath, Asha Sharma, Sangeeta Ghosh, Annu Kapoor, Anil Saxena, Vijay Kadam and Anjali Rajput. "

( 17 ) REFERRING to the above quoted news item, copy of which has been appended by the plaintiff along with the suit, It is urged on behalf of the defendant No. 5 that the plaintiff on the date of filing of the suit was aware of the fact that it was "saibaba International", who was mainly concerned in getting the TV serial MAHASHAKTI aired on Metro Channel of Doordarshan. Knowing fully well that the main affected party was the newly added defendant No. 5, the plaintiff deliberately avoided impleading defendant No. 5 as a party in the suit with malaflde object of trying to procure an order of restraint against the other defendants, since no defence would have been offered to the plaintiffs suit or application at least by defendants 1 to 3, who appears to have now changed their mind by getting the serial stayed.

( 18 ) DEFENDANT No. 5 has also, during the course of arguments, raised an objection that the plaint has not been signed and verified by a duly authorised person on behalf of the plaintiff and has also questioned the authority of D. R. Chawla, the plaintiffs father, to file the suit on the basis of power of attorney. It was stated that on 10. 2. 1995 when the power of attorney in favour of D. R. Chawla is stated to have been executed and later on attested by the Notary Public in Bombay, the plaintiff was not at Bombay but was at Mauritius. Plaintiffs signature on the power of attorney dated 10. 2. 1995 were also questioned, during the course of arguments, saying that the same was not signed by the plaintiff. Another submission made was that the plaint was liable to be rejected since defendant No. 4 was not a legal entity. Suit ought to have been filed against the Union of India through the Secretary in the Ministry of Information and Broadcasting and not against the Director of Doordarshan. In addition the grant of injunction is also resisted on the ground that the plaintiff had acquiesced in the telecast of TV serial since on national network of Doordarshan, the trailor was shown 3-4 times a day since 15. 12. 1994 and even, according to the plaintiffs own version, she acquired knowledge on 12. 1. 1995 of the fact that TV serial MAHASHAKTI was to be telecast shortly. Notice dated 20. 1. 1995 was not served upon defendant No. 5 but it was got served on defendants 1 and 2. Though the first episode was shown on 27. 1. 1995 suit was not filed till 3 episodes had been shown. Not only the plaintiff waived her right through her letter dated 1. 12. 1994, but also acquiesced in the telecast of serial MAHASHAKTI.

( 19 ) AS regards interview, the factum of which is not in dispute at the behest of the plaintiff there is no material on record as to when the same was given. Though the interview is stated to have been published during pendency of the suit in the News Weekly but it was necessary for defendant No. 5 to have led some evidence as to the date of interview. Moreover, the gist of interview is that the plaintiff expressed her willingness for the telecast of serial which was previously named as JANNAT. There is nothing in the interview that the plaintiff ever consented for the telecast of an twisted version of her role as a female artist in JANNAT or VADA HAI MILAN KA. This is a contentious matter which will have to be decided, during the trial of the suit. The mere fact that the plaintiff has come to the court and sought injunction after 3 episodes had already been telecast cannot be taken at this stage as the plaintiff acquiesced in the telecast of the serial unless it is shown that the plaintiff gave her tacit consent for the telecast of serial with twisted version of film JANNAT or VADA HAI MILAN KA or she with full knowledge of the twisted version did not take any promptaction. Acquiescence and estoppel are questions of fact for which necessary foundation has to be laid for which purpose there is not enough material placed on record by defendant No. 5 at this stage of proceedings. News item which appeared in Bombay Eye on 12. 1. 1995 also cannot be said to be one which might estop the plaintiff from seeking an order of injunction after she had come to know that it was a twisted version which is sought to be shown on a small screen other than the one for which she had worked in film JANNAT or VADA HAI MILAN KA. During course of arguments it was contended that there was nothing in the three episodes of the serial which had been shown except a few glimpses of the plaintiff shown in the cast and not in the main episodes. The objection that the plaintiff deliberately did not implead defendant No. 5 as one of the parties to the suit is also of no consequence since there was no privity of contract between the plaintiff and defendant No. 5 and it is not shown that the plaintiff was aware of any agreement between defendant No. 1 and defendant No. 5. The agreement between defendant No. 1 and defendant No. 5 came into being on 19. 5. 1994. Despite the fact that this agreement had come into being, document which was obtained from the plaintiff and on which reliance is placed by defendant No. 1 is of 1. 12. 1994. In the said letter dated 1. 12. 1994 there is no reference made that defendant No. 1 had assigned his rights or that defendant No. 5 had acquired the negative rights. In case intentions of defendant No. 1 and defendant No. 5 were clear, there is no reason why reference should not have been made to the agreement dated 19. 5. 1994 between defendants 1 and 5. Otherwise the consent would have been in different form that the plaintiff was willing to give her consent for the telecast of the serial by defendant No. 5 in terms of the agreement dated 19. 5. 1994. Written statement and reply have not yet been filed by defendant 4. Question of grant of injunction against defendants other than defendant No. 4 can be decided without taking into consideration the objection raised by defendant No. 5 that suit against defendant No. 4 is not properly constituted. Prima facie there is no material that there is no proper authorisation to Mr. D. R. chawla, the father of the plaintiff on the basis of the power of attorney, which is notarised one.

( 20 ) FOR the grant of injunction in view of the aforementioned discussion, a good prima facie case has been made out by the plaintiff. As regards irreparable loss and injury, the effect of grant of injunction would be that the tele serial in question will not be screened. The loss and injury, if any, likely to be caused to defendant No. 5 or to other defendants, in the event of the plaintiff remaining unsuccessful can very well be ordered to be compensated in terms of money but in case injunction is not granted, the effect would be that the tele serial will be screened. The consequence which would flow in case of non grant of injunction and the comperative hardship or inconvenience and damage that is likely to be caused to the plaintiff would be more and the damage caused to the plaintiff as a character actor, it would not be possible to compensate in terms of money. Balance of convenience also lies in grant of injunction since in the event of the plaintiff remaining unsuccessful, defendants can be compensated in terms of money due to the non-telecasting of serial but allowing the tele serial in the light of the aforementioned circumstances would amount to causing immense damage to the plaintiffs reputation which would be evident from the documents produced on record by defendant No. 5, namely, the news item published on 12. 1. 1995 in Bombay Eye which says:

"bollywood super stars Juhi Chawla and Aditya Pancholi have jumped over the lakshman Rekha at last. "

The quoted portion of the news item would prima facie lead to an inference that in the film world super stars are not expected to jump over the Lakshman Rekha, namely, switch over from a big screen to a small screen.

( 21 ) IN view of the above and subject to the stand which defendants 1 to 4 might take when they will file their replies and written statement, the prayer made in this application is allowed restraining the defendants from telecasting the tele serial MAHASHAKTI or any other tele serial under any other name giving to understand and portraying the plaintiff as an artist or character thereof, leading or otherwise. S. 389/95

( 22 ) FOUR weeks time is allowed to defendants to file written statement.

( 23 ) LIST for admission/denial of documents before the D. R. on 28th April, 1995 and in court on 15th May, 1995 for framing of issues.