Manisha Koirala vs Shashilal Nair And Ors.

on 30 August, 2002

Bombay High Court

Manisha Koirala vs Shashilal Nair And Ors. on 30 August, 2002
Equivalent citations: 2003 (2) BomCR 136
Author: F Rebello
Bench: F Rebello
JUDGMENT F.I. Rebello, J.

1. Four scenes of four minutes duration in a film, titled "Ek Chhotisi Love Story" is the subject
matter of the present action. Heard forthwith.

2. Apart from the facts as pleaded considering the issues involved, the film as cleared by the Censor
Board was viewed in the presence of Counsel for the parties and the parties. The story is about an
adolescent boy aged about fifteen years who is obsessed with the girl 26. The boy has the habit of
peeping into the house of the woman. The day-to-day events witnessed by the boy are portrayed in
the film. The story revolves around this infatuation of this adolescent boy with the girl and what he
witnesses as a peeping tom; The girl is friendly with a man with whom she shares an intimate
relationship. This emerges from the film.

The plaintiff is the central character in the film, except for a few scenes which are the subject matter
of the present action and which were acted by a double. The cause of action as pleaded by the
plaintiff is that the defendant No. 1 in breach of contract has used those four scenes inspite of her
objections and protest and thus breached the contract. It is then contended that the public at large
would associate the plaintiff with those scenes. This will injure her reputation and consequently the
tort of defamation. That action, it is contended, would also amount to torts of injurious falsehood
and invasion of the plaintiff's right to privacy.

In support of the said contention are the pleadings in the plaint, affidavit in support of the Motion
and the affidavit in rejoinder filed by Madan Arora, Private Secretary to the plaintiff as also the
plaintiff herself. There is an additional affidavit by Hairdresser Mrs. Maria Sharma. In sum and
substance the case of the plaintiff is that when the shooting was in progress, the plaintiff drew the
attention of the defendant No. 1 that the scenes within the house should not be of a nature such as to
lead the viewers to believe that the plaintiff was exposing herself. The plaintiff contends that the
defendant No. 1 mentioned that these scenes would be treated in a very aesthetic and moderate
manner. The plaintiff then relies on the letter dated 20th April, 2002 addressed by the defendant
No. 1 to the plaintiff, the contents thereof may be reproduced :--

"In regard with the film, "Ek Chhoti si Love Story", this is to inform you, that portions of the film,
has been shot with a duplicate, which involves a certain level of physical exposure.

If you have my (any) objection to any particular section, we stand to replace it with alternate shots."

On the plaintiff's demand the film was screened for her viewing wherein the plaintiff found that four
shots were extremely indecent, vulgar and repulsive and the same was immediately made known to
the defendant No. 1. These four shots were shot with fill-in artist/double in such a manner, that

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would lead the viewers to believe as if the plaintiff performed those parts in the film. The further
case of the plaintiff is that inspite of her protests, the defendant No. 1 is seeking to exhibit the
objectionable portion of the film for commercial gain. The four shots in question which are roughly a
minute each in duration are far too explicit and in the opinion of the plaintiff vulgar and repulsive. It
amounts to indecent exposure and in the plaintiff's opinion objectionable as it leads viewers to
believe that the subject of the said shots is the plaintiff herself. Inspite of the scene being shot by a
fill-in artist/double the plaintiff contends that it was agreed that if the plaintiff had objection to any
shot of the film in which the double or fill in artist has acted and which involve a certain level of
physical exposure, the same would be replaced with alternate shots. The defendant No. 1 is
committing a breach by not deleting the said shots from the film and is threatening to exhibit or
cause to be exhibited the film with the objectionable shots. If the objectionable shots are exhibited
the members of the public, friends and relatives and large number of fans of the plaintiff will hold
the plaintiff to ridicule and the plaintiff will go down in their estimation. It is further pleaded that
exhibition of the objectionable shots is false and malicious and if allowed will defame the plaintiff in
the eyes of the friends, relatives, members of the society, fans, colleagues, directors, etc. The
exhibition will also result in violation of the plaintiff's right to privacy as the objectionable shots,
attempt to expose the body of a female which is suggested to be that of the plaintiff. It is also
contended that the right to portray her on screen can only be exercised in a manner, which is subject
to the fundamental principle that such portrayal can only be with her unconditional consent. The
present rendition of the plaintiff's part of the film is also an invasion of privacy as it is embarrassing
and will cause irreparable damage to her reputation which remains untarnished thereby causing
irreparable loss and injury which cannot be compensated monetarily. It is for these reasons that the
plaintiff claims that an injunction must follow to restrain the defendants from exhibiting the film
and the consequential reliefs. It may also be mentioned that it is the plaintiff's contention that she
agreed not to charge her fees in advance for facts disclosed in the plaint.

The motion taken out, reiterates these facts and is supported by the affidavit of her Constituted
Attorney and Secretary Madan Arora.

3. The defendant No. 1 has filed an affidavit in reply, the first on 20th August, 2002 and an
additional affidavit on 22nd August, 2002. The case of the defendant No. 1 has been used as a
Director and also a person carrying on business under the name and style of Paragon Pictures and
also as producer of films. Defendant No. 2 is sued as a Laboratory which has custody of the prints
and the defendant No. 3 as a Distributor of feature films and in the instant case has been granted
distribution rights to the film.

Defendant No. 1 in his affidavit sets out that he was making an art film on the limited budget which
he could not afford to delay and had to be completed within a period of 20 days. The film was
sensitive and bold and on a very small budget. For that purpose he wanted a new face and did not
want an established actor or actress. As the film was to be a sensitive and bold film, the defendant
No. 1 had a very clear story board sketched for this film. Except for the plaintiff the other stars are
new faces including technicians. The film was to be made with a view to exhibit the same for
international audience. The duration is of two hours approximately and with no songs unlike a
traditional Hindi film and is an experimental new wave cinema. The defendant No. 1 was the story

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writer, producer, director and distributor of the film. It is his singular vision in all department of the
film. All artisans and technicians were fully aware of all the scenes in every frame right from the
inception of the film and has been shot on a very precise and definite format exactly as depicted on
the story board. Each frame/scene was visualized and the story board was prepared and was given to
all artists and technicians at the beginning. A new face to be the heroine had been finalised who had
agreed to do the film after seeing the story board.

There is some dispute as to how the plaintiff came to be engaged. Suffice it to say that would not be
material for disposing of this motion and the reliefs sought as set out in paragraph 5(c) of the
affidavit in reply. The fact remains that the plaintiff was engaged. It is the case of defendant No. 1
that the plaintiff after being aware of the requirement of the scenes for the film agreed to do the film.
After the shooting commenced and when the stage came for the sensitive scenes, the plaintiff
declined to shoot for reasons set out in paragraph 5(f) of the affidavit in reply. The defendant No. 1,
therefore, with the consent of the plaintiff and at her instance arranged for a double/duplicate and
shot the film on 19th and 20th March, 2002 with the double. The plaintiff's own personal wig and
costumes were utilised for the double with the help of the plaintiff's personal hairstylist. The
plaintiff's own hairdresser was present at the site on 19th and 20th March, 2002 when the shooting
took place. The defendant No. 1 seeks to rely on the vouchers of the payments made to the plaintiff's
hairdresser for two days 19th and 20th March, 2002 when she worked for the scene with the double.
It is further the case of the defendant No. 1 that in the course of the shooting the defendant No. 1
had agreed to drop the plaintiff from the film but it was the plaintiff who insisted that the defendant
No. 1 should use the double and convinced the defendant No. 1 to go ahead with the shooting of the
scene with the double. The decision to shoot with the double was taken in the presence of co-artist
Ranvir Shorey, the Co-Director Vijay Talwar and Associate Director Wilson Das and Executive
Producer Bernali Shukla. At this stage it may be clarified that the affidavit at many places uses the
expression duplicate. However, for the sake of convenience the word used in this order is "double".

It is the defendant No. 1's case that at the stage of dubbing the film on 20th April, 2002 the plaintiff
requested that alternate shots which had been filmed and which had been seen by the plaintiff be
used and the plaintiff requested that a letter to that effect be given by defendant No. 1. It is the case
of the defendant No. 1 that as the plaintiff was a friend he accepted the use of the alternate shots
which had already been shot and which had been seen by the plaintiff. It is the case of the defendant
No. 1 that he never agreed to delete any shots as alleged by the plaintiff as that was contrary to the
story board which had been previously shown to the plaintiff before the shooting had commenced. It
is the case of the defendant No. 1 that the plaintiff after dubbing saw the film on 13th May, 2002 and
on 26th June, 2002.

The Censors, it is contended, have certified the film with "A" Certificate without any cuts which in
his opinion would indicate that there are no provocative or objectionable scenes in the film as the
Censor Board felt that intensity and impact of the film would be adversely affected if any cut was
imposed. The fact that there would be provocative scenes was known to the plaintiff from the
beginning and that these were an integral part of the film. It is the case of the defendant No. 1 that
the scenes objected are intrinsic to the film and cannot be deleted. The defendant No. 1 contends
that he has explained in what circumstances the letter of 10th April, 2002 came to be issued. It is his

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case that the plaintiff agreed to do the film free, all the other artists have done the film free save and
except the payment of conveyance charges. Defendant's contention is that the letter addressed by
the plaintiff dated 10th July, 2002 to the Secretary, Cine & TV Artists Association is clearly unfair as
he has not breached any agreement with the plaintiff. The defendant No. 1 has denied that he is
seeking to exhibit the objectionable portions for commercial gain. In the additional affidavit he has
set out that the film is scheduled for release on 6th September, 2002 and that he has spent an
amount of Rs. 50.00 lakhs on advertisements.

Vijay Talwar, Co-Director has supported the version of defendant No. 1 as to what transpired on
17th March, 2002 when the objectionable scenes (sensitive) were to be shot. It is his case that the
plaintiff insisted on using a double/duplicate as she thought she was not in a physically fit condition.
During the dubbing the defendant suggested alternate shots which were used. Executive Producer
Mrs. Barnali Shukla in her affidavit states that it was the plaintiff who insisted on using a duplicate
during the sensitive scenes for reasons set out in the affidavit. It is further averred that the entire
story board was personally shown to the plaintiff much prior to the commencement of the shooting
and the plaintiff was aware of every frame of the film. Wilson Das, Associate Director in his affidavit
supports the version of Mrs. Barnali Shukla that it was the plaintiff who suggested the use of
duplicate/double. It is his further case that as per usual practice alternate shows had also been
filmed. The version of the defendant No. 1 that the plaintiff was personally aware is also supported
by the affidavit of Ranvir Shorey working as a Professional with defendant No. 1 and Morris Joseph
Swamy as a Dress man.

4. The plaintiff has filed a rejoinder which she has personally affirmed. It is the case of the plaintiff
that the entire story board in the present form was not shown. The one shown was substantially
different and different shots were proposed and that the document which has been filed before the
Court and sought to be relied upon appears to be a draft version of the story board. The plaintiff has
further denied that the frames with the story board was shot in the precise format as proposed and
in fact the frames in the story board first shown did not contain the shots at pages 36 and 37. The
shots said to have been picturised and appearing on page 87 was never part of the film as shown to
the plaintiff or story board which was initially shown to her. She denies that the other artists were
fully aware of every frame right from the beginning. It is her further case that the story board was
altered after having initially being shown to her. It is the plaintiff's case that she accepted the role
with a view to help the defendant No. 1 on condition that she would not subject herself to physical
exposure and any such shooting which the defendant No. 1 had in mind, would be subject to her
consent and further provided that such shots were performed by double or fill-in artists in a mildly
suggestive manner but once again subject to her consent. Referring to the story board, frames 1 and
2 on page 4 and pages 87, 89, 90 and 91 it is contended that these were clearly unacceptable to her
and thus never performed by her. The said scenes appear to have been filmed with the fill-in artists,
in the manner which lack grace and with a view to titillate the audience and viewers of the film. It is
pointed out that pages 4, 35 to 37 were expressly agreed to be deleted. Pages 86 to 88 were not
shown in the film when the film was screened for viewing of the plaintiff, page 88 it is contended
was expressly agreed to be deleted and in all probability did not form part of the original story
board. It is then contended that the proposed scenes at pages 89, 90 and 91 were expressly agreed to
be deleted from the film.

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It is the plaintiffs case that the concept of the film itself made her apprehensive as to how the film
would turn out in view of the sensitive nature of the film. The plaintiff has denied that she allowed
the defendant No. 1 to use her personal wig or hairdresser or make up man and denied that shooting
which took place on 19th and 20th March, 2002 was in the presence of her hairdresser. Dealing with
the payment to hairdresser it is contended that there is nothing to suggest that these amounts were
paid on 19th/20th March, 2002. The plaintiff denies at the stage of dubbing of the film on 20th
April, 2002 a request was made to use the alternate shots. It is then pointed out that it is not a
normal practice in the industry to issue letters to the artists. The plaintiff denies that she saw the
film after dubbing and did not object to it and that she ever saw the film at Gemini Studio, Chennai.
It is the plaintiff's case that for the first time that she watched the film with her mother in a Preview
Theater at Juhu where her Secretary Madan Arora was also present. It is her further case that mere
clearance of the film by the Censor Board or granting certificate cannot prevent the present action of
reliefs prayed for therein. The suggestion why the Censor Board did not impose any cuts is also
denied.

Mrs. Maria Sharma, Personal Hairdresser has filed an affidavit. It is her case that her attention has
been drawn to affidavits filed by the defendant No. 1. It is set out that the plaintiff refused to
participate in some scenes which were suggested by defendant No. 1. It is averred that shots were
not made in her presence and were reportedly taken after the plaintiff, her make up man and she
had packed up from Chitrarth Studio and left the location of the shooting. It is not necessary to refer
to affidavit of Madan Arora as the plaintiff herself has filed affidavit an rejoinder. However, along
with his affidavit are annexed some advertising material which it is contended is defamatory.
However, no reliefs on that count have been sought.

5. From the narration of the above facts it will have to be prima facie considered whether :-

(a) Does the plaintiff prove that there was in existence a contract between the plaintiff and
defendant No. 1, that the defendant No. 1, would use only such scenes in the sensitive part of the
film done by the double which were agreed to by the plaintiff.

(b) Alternatively does the plaintiff prove that the defendant No. 1 filmed scenes not forming a part of
the story board? and had agreed to delete the scenes which are the subject matter of the present
action as set out in para 10 of the rejoinder;

(c) Does the defendant No. 1 prove that the scenes in the film are as per the original story board?

(d) Does the plaintiff prima facie on the material as placed before this Court disclose any act which
would amount to the tort of defamation?

(e) Do the scenes which have been objected to by the plaintiff, amount to a case of injurious or
malicious falsehood.

(f) Will screening the objected scenes amount to an invasion of the plaintiff's right to privacy?

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6. On an answer to the said issues, it will have to be determined in whose favour the balance of
convenience lies and whether irreparable loss and injury would be occasioned to the plaintiff if the
reliefs prayed for are not granted. It must be set out at the threshold that the plaint does disclose
triable issues. The issue is whether there are strong triable issue which would warrant grant of the
reliefs as prayed for. Considering the other predicates for grant of temporary injunction.

The defendant No. 1 claims a copyright in the film as director, producer, etc. The defendant in
paragraph 5(a) has set out the awards received by him including the National Award for Best
Director. The plaintiff is the female artist participating in the film who plays the pivotal role of the
film and if it may be said after having the benefit of viewing the film has portrayed the character,
sensitively and those scenes which she has personally acted. She has set out in paragraph 8 of the
rejoinder the films which she acted in the past, the films under production and the Awards she has
received.

7. The first issue therefore, is whether there was a contract as pleaded by the plaintiff and that the
shots filmed and which are the subject matter of the action were not part of the original story board
and were agreed to be deleted by the defendant No. 1 and further the story board now placed before
the Court is not the story board which the plaintiff was shown.

A few facts which have been adverted to earlier will help the Court in answering the said issue.
Firstly, it is apparent that there was a story board. There is an admission to that effect by the
plaintiff herself in her rejoinder at paragraph 4. Plaintiff describes that story board as the draft
version, as the version shown to her was different. Then in paragraph 7 she states that the story
board shown to her did not contain the shots at pages 36 and 37. The shot at page 87 was not part of
the story board or film shown to her. The dispute is thus now limited to some pages or frames in the
said story board and the scenes which according to the plaintiff as set out in para 10 were to be
deleted. It is further clear that the plaintiff was aware that the film was sensitive and would require
certain degree of exposure. What is material to note are the averments in para 10 of the affidavit in
rejoinder. If the story board shown to the Court can be said to be the first draft the plaintiff with
reference to pages 4, (frames 1 & 2) 87 to 89, 90 and 91 sets out that they were clearly unacceptable
to her and not played by her. From this it is clear that the scenes were those on the story board but
were not played by the plaintiff but by the fill in artist. After seeing the film it is the case of the
plaintiff that pages 4, 35 to 37 of the story board were agreed to be deleted. Pages 86 to 88,
according to the plaintiff, were not shown in the film screened for her viewing and it was agreed that
page 88 would be deleted. From the above what emerges is that from pages 86 to 88 what was to be
deleted was page 87 and not pages 86 and 88. Lastly it is set out that the proposed scenes at pages
89, 90 and 91 were expressly agreed to be deleted from the film. In other words they formed part of
the story board. Therefore, clearly pages 4 (frames 1 & 2), 35 to 37, 86, 87, 88, 89, 90 & 91 prima
facie was part of the story board. What is material, therefore, is that these were the scenes which
were contained in the story book, but to which the plaintiff took offence. There is a dispute as to
under what circumstances the plaintiff agreed to the double acting in the sensitive scenes. The
plaintiff herself has admitted that double could have been used but would be subject to what the
plaintiff contends in para 9 of the rejoinder. That the defendant No. 1 filmed those scenes with the
double cannot be disputed. As pointed out earlier Mrs. Maria Sharma one of the affiants who has

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filed an affidavit in support of the defendant has not denied payment made to her for the shooting
on 19th and 20th March. The explanation for the payment only comes in the affidavit of the plaintiff
in para 16 of the rejoinder. This cannot assist the plaintiff. It ought to have come from Mrs. Maria
Sharma who could have traversed those contents in a like manner she has denied some other
allegations in the affidavit of defendant No. 1. It is, therefore, clear that certain scenes were filmed
with the fill-in artists/double with the help of the plaintiff's hair dresser. There is no material before
this Court to hold that as term of the contract, for the plaintiff acting in the film, she had imposed
certain conditions, which had been agreed to.

The inference sought to be drawn or aid sought on letter dated 20th April, 2002 cannot prima facie
support the version of the plaintiff on material on record. That letter at the highest is an intimation
to the plaintiff that certain portions of the film shot with the double involve certain level of physical
exposure and if the plaintiff has any objection to any particular section, the defendants stood to
replace it with alternate shots. It is nobody's case that the plaintiff personally was present when the
double performed the disputed scenes. It has been explained that at the time of shooting of the film,
alternate shots of the film are taken for substitution, if there be objection. The case of the defendant
No. 1 is that on objections raised by the plaintiff to the original shots they have substituted them by
alternate. The alternate shots are the one which have been approved by the film Censor Board. Apart
from that the plaintiff was present at the time of dubbing of the film. In para 5(1) of the reply filed by
defendant No. 1 it is set out that she was present and saw the film. In rejoinder at page 17, the
defendant No. 1 denies that at the time of dubbing she requested the alternate shots to be used.
There is no specific denial of her not being present. Therefore, a reasonable inference that she was
present. The other letter is of July, 10, 2002 addressed to the Secretary of the Cine & T.V. Artists
Association. In this letter it is not the case of the plaintiff that there was any earlier contract under
which the defendant would shoot scenes with fill-in artist as approved by the plaintiff. All that the
letter shows is that certain scenes filmed with the fill-in artist were agreed to be replaced by the
defendant No. 1 and she had objected to four shots which were beyond the level of acceptance. The
response of defendant No. 1 to that is immediate, that with those kind of objections he will have to
reshoot the film and in that case the plaintiff should reimburse 50% damages incurred in the
process. The story board and the film would disclose that the scenes were part of the story board.
The defendant No. 1 Director describes them as integral to the film. The film itself has been cleared
by the Censor Board-our moral guardian.

Is it for the Court to decide whether certain scenes are impermissible and/or not to be exhibited.
Even otherwise it is ultimately for the creator of the film, the Director who has visualized the
concept and who is the maker of the film to shoot the film and the Censor Board to decide whether
they should be exhibited for public viewing. The plaintiff has not challenged the action of the Censor
Board in allowing the scenes to remain as part of the film. The only limited question is the existence
of the contract as pointed out by the plaintiff and the agreement by defendant No. 1 to replace those
shots by alternate shots. Considering the story board as available before this Court, the documents
on record and the affidavits it is not possible to come to the conclusion that there was an agreement
between the plaintiff and the defendant No. 1 as pleaded by the plaintiff and that the defendant No. 1
breached the agreement. I accordingly hold that the plaintiff has failed to discharge that burden at
this stage which is required for this Court to arrive at a conclusion that there was a contract and that

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the defendant No. 1 had breached the said contract. Further the case of the defendant No. 1 has been
that the four shots which were objected have been replaced by the alternates as requested by the
plaintiff.

8. The next issue would be whether prima facie atleast the scene enacted by the double would result
in the tort or defamation. Tort or defamation in the instant case is by association. The plaintiff may
be prima facie to contend that those who view the film would not differentiate between a fill-in artist
and the plaintiff and association will be with the plaintiff. The question, however, is whether the
scenes which are shown in the film would fall within the expression "defamation" as understood.
Salmond & Heuston on the Law of Torts. Twentieth Edition defines a defamatory statement as
under:--

"A defamatory statement is one which has a tendency to injure the reputation of the person to whom
it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of
society generally and in particular to cause him to be regarded with feelings of hatred, contempt,
ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary,
right-thinking member of society. Hence the test is an objective one, and it is no defence to say that
the statement was not intended to be defamatory, or uttered by way of a joke. A tendency to injure
or lower the reputation of the plaintiff suffices, for "If words are used which impute discreditable
conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may
even know that it is untrue. Hence it is settled that a statement may be defamatory although no one
to whom it is published believes it to be true."

Carter-Ruck on Libel and Slander, Fifth Edition have carved out some of the tests as under :--

(1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which
causes him to be shunned or avoided, or which has a tendency to injure him in his office,
professional or trade.

(2) a false statement about a man to his discredit.

(3) would the words tend to lower the plaintiff in the estimation of right thinking members of society
generally?

These are the tests which the Judge must apply. These tests have to be decided not in the context of
what the plaintiff wants or what the defendant No. 1 thinks to be just and proper. The test would be
based on the theme of the story and the ideas behind it. It will also not be possible for this Court to
decide whether any particular scene ought to have been used or not used or in what sequence or
context. That would be purely in the realm of the person making or directing the film and the impact
that person would like to create on the audience who wish to view the film. As set out earlier the
theme which has been described earlier is about a working girl and her relationship and intimacy
with her boy friend and the infatuation of the young boy when thinks he is in love with her. These
prima facie formed part of the story board and was known to the plaintiff. If seen in this context it
cannot be said that the scene would fall within the definition of what the plaintiff contends is

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defamatory. Once the plaintiff had agreed to act in the film it is not possible thereafter to contend
that certain scenes filmed are defamatory to the plaintiff's character and reputation. The scenes are
integral as contended by the defendant No. 1 to the film. There is no material to the contrary either
in the affidavit or documents. Once the scenes are integral it must be assumed that the plaintiff was
aware that this would form part of the film. All that can be said is that the plaintiff did not act in
those scenes which had to be acted by a fill-in artist or double. There are two contending versions,
why the plaintiff did not participate in the scenes. The plaintiff's case is because of the agreement,
which the Court has prima face held not proved and the other version is that of the defendant No. 1,
that on account of her physical condition she was not able to perform the scenes. The case of the
defendant No. 1 was that it was the plaintiff who had to perform those scenes and as she could not
perform it was she who suggested that a double should act in those scenes.

The Court also cannot be a moral guardian in this context. The film is meant for an adult audience
as decided by the Censor Board. What perhaps would not even create a ripple in Hollywood has
created a storm in Bollywood. It is, however, clear to my mind that once having agreed to act in the
film it will be too late for the plaintiff atleast on the material as it stands, to hold that a case of
defamation has been made out.

9. In so far as the tort of injurious or malicious falsehood is concerned, this tort relates to those
statements which are false but not defamatory and which do not constitute either slander of goods
or slander of title. To maintain a case of malicious falsehood it must be held out that the statement
was false. In the instant case what is sought to be contended is that the scenes involving the film
artist would result in an action of malicious injurious falsehood or malicious falsehood by
associating the plaintiff's with the scenes which she had not enacted. It will be difficult to appreciate
on the fact of this case that the defendant No. 1 is liable for malicious falsehood. The plaintiff was
prima facie aware as earlier held and that the scenes formed part of the story board have been
enacted by a double and consequently it cannot be said that in the present case the plaintiff has been
able to establish a case of malicious falsehood.

10. We lastly come to the case as to whether the plaintiff's right to privacy has been invaded.
Admittedly the scenes of which objection is taken do not involve the plaintiff's presence. Even
otherwise in the Law of Torts by John G. Fleming in the Chapter Right of Privacy, it is pointed out
that perhaps the closest affinity to some aspects of the right of privacy is found in the law of
defamation. Violation of Privacy has not so far, at least under that name, received explicit
recognition as a tort by British Courts. For one thing, the traditional approach has been to formulate
tort liability in terms of reprehensible conduct rather than of specified interests entitled to
protection. For another, British Courts have been content to grope forward cautiously along the
grooves of established legal concepts, like nuisance and libel, rather than make a bold commitment
to an entirely new head of liability. It is no doubt true that American Courts have taken different
view but considering the law of Tort it is the English common law that is followed in this Country.
This would follow from Article 372(1) of the Constitution. The common law is existing law. The law
applied by English Courts to common law is normally followed on most occasions by courts in this
Country unless they depart from the law. Even otherwise once this Court has come to the conclusion
that tort or defamation has not been proved it will be difficult to hold that there is an invasion of

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plaintiff's right to privacy.

11. Once having so held it will be difficult to consider the grant of reliefs in favour of the plaintiff.
Apart from that, the defendant No. 1 has filed an affidavit setting out that he has spent over Rs.
50.00 lakhs in publicising the release of the film on 6th September, 2002 and has incurred
expenditure over Rs. 2.00 crores in shooting the film. The defendant No. 1 is the holder of the copy
right in the film. To my mind, therefore, the balance of convenience is in favour of the defendant No.
1 and irreparable loss and injury would be occasioned if the reliefs prayed for by the plaintiff is
granted, considering that the Censor Board has cleared the movie for public exhibition with a "A"
Certificate.

12. In the light of that Notice of Motion stands dismissed. In the circumstances of the case there
shall be no order as to costs.

13. Learned Counsel for the plaintiff prays for maintenance of the existing status quo. Heard learned
Counsel for the parties. On behalf of the plaintiff learned Counsel contends that the position as
existing today should be continued for a further period of five days. On 14th August, 2002 the
statement of defendant No. 1 was recorded that the film will not be released until further orders. The
Court itself, did not prima facie consider the case. Now having considered the case, in my opinion,
this would not be a fit case where this Court should order status quo.

Hence application for status quo rejected.

Personal Secretary of this Court to issue authenticated copy of this order to the parties.

Notice of Motion dismissed.

Indian Kanoon - http://indiankanoon.org/doc/1913646/ 10