injunction
Querist :
Anonymous
(Querist) 06 July 2011
This query is : Resolved
sir,
can you please help me by answering the consequences of delay in filing injunction application under order 39.
it could be of great helpfulness if could cite some relevent supreme court cases.
Guest
(Expert) 06 July 2011
It depends upon the facts and circumstances.
Court has to decide whether it is gross and unexplained delay ?
Here are the two cases;
Pyar Do Pyar Lo to feature in Thank You
Mumbai The Popular 80s number Pyar Do Pyar Lo will feature in its remixed version in Anees Bazmee’s Thank You, as the Bombay High Court held on Friday that Feroze Khan Films (FKF) was too late to raise copyright infringement claims over the song.
Granting relief to UTV productions, the court refused to grant an interim injunction to FKF that had sought to restrain UTV from using the song in the film scheduled to release this weekend. FKF, producers of the Feroz Khan-Anil Kapoor starrer Jaanbaaz, had moved the court against UTV Productions alleging the latter had not bought the rights to use the song in its upcoming film from FKF and should therefore be restrained from using the song in its film. Counsel for UTV told the court that they had bought the copyright from the company that FKF had sold the rights to. However, FKF’s counsel Ashok Saraogi said, “FKF had signed an agreement with one Music India Limited in December 1984 giving them copyrights of the songs in the movie Jaanbaaz for a period of two years. After two years, the copyright to the songs came back to FKF.”
Hearing the case, Justice DY Chandrachud observed that there had been an inordinate delay in filing of the suit by FKF. “There has been a gross and unexplained delay by FK Films in filing the suit. Interim injunction cannot be given at this stage. The movie is slated for release this weekend and the producers have already spent Rs 60 crore on the making of the film,” Justice Chandrachud observed. The court, however, asked UTV Productions to file a reply to FKF’s allegations by April 28.
Meanwhile, the song that has already been released on television promos and radio will not be deleted from the cinema.
Source;http://www.expressindia.com/latest-news/pyar-do-pyar-lo-to-feature-in-thank-you/773186/
Martin Kerr Roberts And Anr. vs Macario Antonio Francis De Cunha ... on 25 August, 2005
Equivalent citations: 2006 (1) BomCR 793
Author: L R.M.
Bench: L R.
JUDGMENT
Lodha R.M., J.
1. Heard Mr. Valimiki Menezes, the learned Counsel for the petitioners and Mr. D. Pangam, the learned Counsel for the respondents.
2. Rule, returnable forthwith. Rule is heard finally at this stage.
3. This writ petition is directed against the order dated 30th April, 2004 whereby the IInd Addl. District Judge, North Goa, Panaji rejected the application made by the present petitioners for condonation of delay in filing the appeal against the Order dated 6th September, 2003 passed by the Civil Judge, Jr. Division, Mapusa.
4. The present petitioners are the original plaintiffs in Regular Civil Suit No.35/ 01/E. They made an application for grant of temporary injunction against the defendants (the respondents herein). The trial Court vide its order dated 6.9.2003 dismissed the application made by the plaintiffs petitioners for grant of temporary injunction. Aggrieved thereby, the appeal was preferred on 17.11.2003. Since the appeal was barred by time, a civil application for condonation of delay was also made. In that civil application, the petitioners stated that soon after the impugned order came to be passed on 6.9.2003, the Director of Panchayats passed an order on 3.10.2003 in a Panchayat Appeal wherein the present respondents were also parties. The attorney of the petitioners consulted the Advocate about further course of action against both the orders, namely Order dated 6.9.2003 passed by the Civil Judge, Jr. Division, Mapusa and the order of the Director of Panchayats. The attorney of the petitioners applied for certified copy of the order passed by the Director of Panchayats to file writ petition. He was told that limitation to file an appeal to the District Court was 30 days and to the High Court was 90 days. However, the attorney not being well conversant with the legal procedure got confused and was under bona fide belief that the limitation for filing the appeal was 90 days. The attorney of the petitioner contacted Advocate Valmiki Menezes on 7.11.2003 for filing the writ petition and the appeal. He was informed that the appeal from the order dated 6.9.2003 lay to the District Court and for that limitation had already expired. The petitioners applied for another certified copy on 7.11.2003, which was delivered on 14.11.2003 and the appeal came to be filed on 17.11.2003.
5. The application was contested by the respondents. The respondents submitted that after dismissal of the application for temporary injunction on 6.9.2003, they waited for 10 days and thereafter demolished the temporary compound wall and constructed a permanent boundary wall except the installation of back side service gate and plastering of the wall internally. It was submitted that the application for condonation of delay was vague deliberately and that full and correct facts have not been disclosed by the petitioners.
6. The Appeal Court dismissed the application for condonation of delay. Aggrieved thereby, the present writ petition has been filed. It is true that in the application for condonation of delay the petitioners have not specifically averred that the application for certified copy of the Order dated 6.9.2003 was made on 18.9.2003. However, mala fides cannot be attributed to the petitioners for this lapse. Firstly, the certified copy of the Order dated 6.9.2003 itself was placed on record by the petitioners and that reflected that the application was made on 18.9.2003. Secondly, in paragraph 7, the petitioner stated that application for another certified copy was made on 12.11.2003. Obviously, reference to another copy made in paragraph 7 relates to the application that was made on 18.9.2003. In this view of the matter, much capital cannot be drawn out of the lapse on the part of the petitioners in not specifically mentioning in the application that the first application for certified copy was made on 18.9.2003. As a matter of fact, the petitioners had been candid and honest in making statement in the application that when the attorney met the Advocate he was informed that the limitation for appeal to the District Court was 30 days and to High Court was 90 days. However, the attorney got confused and formed the belief that the limitation for filing the appeal was 90 days. Be that as it may, the facts that have come on record do not show any lack of diligence on the part of the petitioners or their attorney in prosecuting the matter for filing the appeal and malice cannot be attributed in not filing the appeal in time. There was bona fide lapse on the part of the petitioners in filing the appeal belatedly and the facts set out in the application make out sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation. Act.
7. The learned Appeal Court had been too hyper-technical and did not consider the application for condonation of delay with justice oriented approach. The delay of course was there, but that was of few days and that happened because of bona fide belief of the attorney of the petitioners that limitation for filing the appeal was 90 days.
8. Whether the appeal filed by the petitioners was meritorious or not, could only be examined after the delay was condoned and the appeal after registration was heard.
9. I am satisfied that the appeal Court committed illegality and material irregularity in exercise of its jurisdiction in dismissing the application for condonation of delay.
10. Rules is accordingly, made absolute. The impugned Order is set aside. The application made by the petitioner for condonation of delay stands allowed. The appeal Court is directed to hear the appeal against the Order dated 6.9.2003 on merits. No costs.
P.C.:
1. Heard Mr. Valimiki Menezes, the learned Counsel for the petitioners and Mr. D. Pangam, the learned Counsel for the respondents.
2. Rule, returnable forthwith. Rule is heard finally at this stage.
3. For the selfsame reasons stated in the order passed by me today in Writ Petition No.469/2004, this writ petition is also allowed.
4. The impugned Order is set aside. The application for condonation of delay stands allowed. The Appeal Court is directed to hear the appeal on merits. Rule is, accordingly, made absolute. No costs.
here is another case:http://www.advocatekhoj.com/library/judgments/index.php?go=2008/april/13.php
