Kashish Makkar

Dismissal of a frivolous SLP praying for an eleventh-hour injunction on the release of ‘Kaala’ without any costs is problematic

“You want an injunction against the release of the movie. Everybody is waiting for the film to be released”, were the words that resounded across media reports and entertainment circles, when the Supreme Court refused to entertain a Special Leave Petition (SLP) seeking an injunction against the release of Rajnikanth-starrer ‘Kaala’. The court didn’t simply stop at the above statement. While refusing the plea, it went on to say that, “Let it (movie) be released. How can we stop the release?”

In what seemed like a harmless limerick, the Supreme Court apparently, set a dangerous precedent. The Court casually dismissed the SLP, which sought an eleventh-hour injunction without having a prima facie case in the first place. Such an order of the court goes against the defined jurisprudence of dismissing frivolous eleventh-hour injunctions with costs.

In this post, I will argue that by dismissing the SLP without costs, the Supreme Court quite notably went against the established eleventh-hour frivolous injunctions jurisprudence and committed a folly, which could make SLPs an exception to eleventh-hour frivolous injunction litigation.

Eleventh Hour Frivolous Injunctions

In the early part of this decade, there was a spate of litigation in the entertainment industry, to injunct the release of movies. Quite remarkably the litigation happened at the eleventh hour, i.e., just before the release of the movie, even though the litigant had the opportunity to approach the court in time. These injunction applications are popularly called as requests for ‘eleventh-hour injunctions’.

Apart from being at the eleventh-hour, most of these litigations were found to be without merit (see, here and here). The producers were simply sued for copyright infringement without any valid claims. Therefore, these litigations were found to be vexatious and a waste of judicial time. As a result, of late, to discourage them, the High Courts started to impose costs on the litigants in light of the Supreme Court decision in Dnyandeo Sabaji Naik v. Mrs Pradnya Prakash Khadekar & Ors.

The charge in this respect was taken by Justice G.S. Patel of the Bombay HC, where he imposed huge costs on litigants who were found to be indulgent in vexatious litigations. Some of his remarkable orders include imposition of 5lakh rupees in costs on litigants who sought an injunction on the movie Phillauri, and 1.5-lakh rupees in costs on litigants who sought an injunction on the movie Mohenjodaro (see orders, here and here).

SLP seeking an injunction on the release of Kaala

The Rajnikanth-starrer Kaala had been facing litigation since October 2017 on account of copyright violation due to allegations of a plagiarized script. The Madras HC had dismissed the same petition on April 20, 2018 on account of there being no prima facie case of an infringement.

However, on June 6, an SLP was moved in the Supreme Court against the order of Madras HC. The relief sought in the SLP was again an injunction on the release of the movie, which was scheduled to release the next day. The grounds for making the application had already been adjudged by the Madras HC, as not constituting a prima facie case. The two grounds on which the application was moved, first, the registration of title of the movie and second, copying of the script, were unsubstantiated. This is on account of the fact that the petitioner’s registration of title had already expired and was considerably different than that of respondent’s, and, the plagiarism of script was not supported by documentary evidence. Infact, the original script from which the plagiarism was alleged wasn’t even produced before the court.

Therefore, this was again an eleventh-hour injunction application, having no prima facie grounds of a copyright violation. It must also be pointed out that an eleventh-hour injunction doesn’t simply require a prima facie case, it places the burden on the petitioner to “make out so overwhelming a prima facie case that all other considerations pale into insignificance”. This was laid down by Justice Patel in the order dismissing Phillauri’s eleventh-hour injunction. (Read more about this, here.) Therefore, the SLP in question was frivolous in the least.

Given the above considerations of the SLP being an eleventh-hour injunction application and that too without a prima facie case, the dismissal by the Supreme Court of the same with a limerick of sorts is problematic.

Dismissal of SLP with Costs

One may argue that filing of an SLP does not amount to vexatious litigation and that it is an ordinary function of the Supreme Court to accept or reject them. Simply put, only if an SLP is admitted and then found to be frivolous should it be subjected to costs. This is on account of the fact that only then such a litigation would amount to wasting of judicial time and thus, could be termed vexatious. However, the above argument is patently untrue.  This is on account of the fact that it is not unprecedented for an SLP to be dismissed with costs. In fact, Justice Khehar very recently slapped costs on SLPs that came for admission on account of them being a waste of judicial time. Moreover, it is only fair that SLPs which are found to be prima facie vexatious or frivolous, be dismissed with costs, as each hearing for admission has an opportunity cost in terms of lost judicial time.

The above reasoning is analogous to what was laid down in Dnyandeo Sabaji Naik v. Mrs Pradnya Prakash Khadekar & Ors.  [(2017) 5 SCC 496]. The above case is an authority on the jurisprudence of dismissal with costs. It lays down that any abuse of the process of court must be dealt with in a serious fashion and that the legal system must not be exploited by frivolous litigants.

The filing of the SLP in the instant case, without any prima facie case and that too at the eleventh-hour is nothing more than an abuse of the process of court. Therefore, the above judgment of the SC in Dnyandeo Naik applies squarely to the facts of this case. Hence, it should have been dismissed with costs.

Therefore, clearly, the order of dismissal without costs is a one-off order, that marks the departure from the trend to penalise frivolous litigants.

The way forward

Does the dismissal of SLP without any costs in Kaala have any implications? To put it crudely, yes, it does. Given the spate of litigation in this arena, it would not be long before ambulance-chasers make SLPs a new avenue for Eleventh-Hour Injunctions.

Therefore, there is an abject need for the Supreme Court to lay down in unequivocal terms that the process under Art. 136 would not be abused for Eleventh-hour injunctions. Hence, the Supreme Court must, in a similar SLP, restore its folly.

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