BHARTI AIRTEL LTD vs RELIANCE JIO INFOCOMM LTD

Media,"ASCI

Code","Defendant’s

Advertisemen ts

prior to order

dated

13.04.2018","Defendant’s

Advertisement

post the order

dated

13.04.2018

Televisionstandard

definitions","For

standard

definition

images,

the height

of the text

lower case

elements shall

be NOT LESS

THAN 12

pixels [12

lines] in a 576

line raster","In the

defendant’s

advertisement s,

the height of the

text

lower case elements

is, at least 12 pixels","In the

Defendant’s

advertisements

the height of the

text lower

case elements is, at

least 12 pixels.

Further, the text has

been modified in

accordance with the

O r d e r dated

13.04.2018

TelevisionHigh

Definition","For high

definition

images, the

height of the

text lower

case elements

shall be NOT

LESS THAN

18 pixels [18

lines] in a 1080

line raster.","In the

Defendant’s

advertisement s the

height of the text

lower case elements

is at least 20 pixels.","In the

Defendant’s

advertisements the

height of the text

lower case elements

is at least 20 pixels.

Further, the text has

been modified in

accordance with the

O r d e r dated

13.04.2018.

Hold Duration for

disclaimers in

Television Commerci

als/Videos","Disclaimer

shall remain in

the screen for

MORE

THAN 4

seconds for

every line, and

additional 2

seconds for

every

additional line.

If the claim is

presented as a

voice over

(“VOâ€​),

then disclaimer

should be

displayed in

sync with the

VO.","Complied with, in

the case of the

defendant’s

advertisement s with

the disclaimer in the

Defendant’s

advertisement s

being lower than

required under the

ASCI code, and

remains for the

entire duration of the

VO","Complied with, in

the case of the

Defendant’s

advertisements, with

the disclaimer in the

Defendant’s

advertisements

being lower than

required under the

ASCI Code, and

remains for the

entire duration of the

VO. Further, the

text has been

modified in

accordance with the

order dated.

Print Advertisem ent,"The font size

of disclaimers

shall be NOT

LESS THAN

7 point for

advertisements

of 50 cc or

less, NOT

LESS THAN

9 point for

advertisements

of 100 cc or

less and NOT

LESS THAN

10 point for

advertisements

of more than

100 cc","The

Defendant’s

advertisement s

have employed the

use of 10 font size,

as per the ASCI

Code.","The

Defendant’s

advertisements have

employed the use of

10 font size, as per

the ASCI Code.

Further, the text has

been modified in

accordance with the

Order dated

13.04.2018 and the

letters have been

made bold..

but is itself using even a lesser font size for its disclaimer in its advertisements. One of such advertisement of the plaintiff herein is shown and the,,,

same is not even in bold. It is argued as the defendant has complied with order dated 13.04.2018 and as its advertisements are as per the ASCI,,,

standards it cannot be held for contempt. He even relied upon Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and Others 1976 (1)",,,

SCC 671 wherein the Court held:,,,

“47.Thus, in substance, the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic",,,

commercial interest, causing pecuniary harm and loss of business from competition. Such harm or Loss is not wrongful in the eye of law, because it",,,

does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of",,,

this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law(1). The reason why the law",,,

suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an",,,

individual is a gain to society at large.,,,

Â,,,

In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not",,,

sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully",,,

affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He 'has no legal peg for' a justiciable,,,

claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No objection Certificate.†8. The,,,

crux of the argument of the defendant is though they have a good case on merits as the plaintiff has no legal right to sue but yet it has given a,,,

concession and are further open to any reasonable amendment to their advertisement.â€​,,,

(Emphasis supplied),,,

In view of the above submission on behalf of the appellant/defendant on the 2nd May 2018, the ld. Single Judge directed as follows: “9.",,,

Considering the contentions/rival contentions it would be appropriate if instead of using the font size 10 pixels in its disclaimer the defendant use 12,,,

pixels in print media and that too in a prominent and visible place and not at the bottom. So far as the video clips/ television advertisements are,,,

concerned the disclaimer should start running from the word the girl says “Seasonal Pass-------------†and it should be displayed in sync with the,,,

voice over. The disclaimer in bill boards and hoardings be also at prominent place and be visible as per ASCI guidelines.â€​,,,

11.The appellant has before us assailed both the orders dated 13th April, 2018 and 2nd May, 2018 inter alia contending that the ld. Single Judge has",,,

passed the above directions without recording any finding with regard to any violation by the defendant of the order dated 13th April, 2018; that the",,,

order was without any basis in facts or law; that the respondent had no legal right which was actionable in law and it had not suffered any actionable,,,

legal injury; that there was not even an iota of evidence of legal injury; that the order dated 2nd May, 2018 purported to rely on a concession made",,,

on behalf of the appellant/defendant and therefore, had to be confined, to the specific concession alone; that the suit itself was not maintainable and",,,

hence the plaintiff was disentitled to any interim relief therein as well.,,,

Inasmuch as the present appeal can be disposed of on a basic issue going to the root of the matter, we do not propose to examine the other",,,

issues which have been pressed in support of the appeal by Mr. P. Chidambaram and Mr. Rajiv Nayyar, ld. Senior Counsels for the",,,

defendant/appellant.,,,

It is trite that an order premised on consent of parties has to strictly confine itself to the contours of the concession by a party and cannot go,,,

beyond it.,,,

As noted above, the relief granted to the plaintiff on the 13th of April 2018 (breach whereof was complained by wayc of I.A.No.5554/2018) was",,,

restricted to changes in the advertisements, as stated in para 6 of the said order.",,,

It is also to be noted that the plaintiff/respondent made no grievance and sought no further directions after the passing of the order dated 13th,,,

April, 2018. The plaintiff was satisfied with the order despite no order having been passed with regard to the specific prayer of",,,

airing/televising/broadcasting in any manner or mode of advertisements.,,,

On an examination of the order dated 2nd May, 2018, we find that the appellant/defendant had, without prejudice to its rights and contentions,",,,

made a concession beyond what was recorded on 13th,,,

April, 2018 and expressed an agreement to “increase the size of the disclaimer in its advertisement from 10 pixel to 12 pixelâ€. No other",,,

concession whatsoever was recorded.,,,

The order dated 2nd May, 2018 does not return any finding by the ld. Single Judge that the appellant was in breach of the order dated 13th April,",,,

2018.,,,

On the 2nd of May 2018, the concession made by the appellant was strictly restricted to the use of font size of 12 pixel in its advertisements. The",,,

order on the application under Order XXXIX Rule 2A of the Code of Civil Procedure on 2nd May, 2018 is clearly premised on the consent of the",,,

defendant and had to be confined to the same.,,,

While considering an application under Order XXXIX Rule 2A of the Code of Civil Procedure, only the issue as to whether the defendant was in",,,

breach of the order or not, is before the court. The scope of consideration of an application under Order XXXIX Rule 2A of the Code of Civil",,,

Procedure is also well settled. The jurisdiction exercised by a court while considering an application under Order XXXIX Rule 2A of the Code of,,,

Civil Procedure is executory and the court would have no jurisdiction to pass fresh directions as if it was considering an application under Order,,,

XXXIX Rules 1 and 2 of the Code of Civil Procedure.,,,

It is submitted by Dr. Abhishek Manu Singhvi, ld. Senior Counsel for the respondent that the order dated 13th April, 2018 has to be considered",,,

“holistically†keeping in view the submissions made by the respondent/plaintiff. As noted above, the ld. Single Judge, on that day, has simply",,,

noted the submissions without even recording any prima facie finding thereon. We are of the view that the order dated 13th April, 2018 was also",,,

specific and confined to the concession noted in para 6 and cannot be expanded to include the submissions made on behalf of the plaintiff.,,,

It has further been submitted by Dr. Abhishek Manu Singhvi that the defendant had understood the order dated 13th April, 2018 to include the",,,

visual and electronic media and for this reason has effected changes in the advertisements in the electronic media as well. This has no bearing so far,,,

as the order, breach whereof was being complained by the plaintiff.",,,

For the purposes of the present appeal, we are not required to consider anything that the appellant/defendant may have undertaken voluntarily",,,

inasmuch as the court was required only to examine violation of the orders passed by the ld. Single Judge. The conduct of the defendant in effecting,,,

modifications beyond what was directed cannot impact our consideration to the import of the said orders.,,,

The respondent is unable to dispute the limited nature of the concession granted by the appellant/defendant as stands noted in both the orders,,,

dated 13th April, 2018 and 2nd May, 2018.",,,

The ld. Senior Counsel for the respondent/plaintiff is also unable to point out any finding returned by the ld. Single Judge on the submissions made,,,

by either parties. It is quite clear that both the orders are premised on the specific concession on behalf of the counsels for the appellant.,,,

Therefore, keeping in view the specific concessions made on behalf of the defendant, as noted in para 6 of the impugned order and the scope of",,,

Order XXXIX Rule 2A of the Code of Civil Procedure, the other directions made in the order with regard to the “prominent and visible placeâ€",,,

regarding the advertisement in the print media as well as video clips and television advertisements could not have been passed. .,,,

26.In view of the above, we uphold the direction made by the ld. Single Judge in para 9 of the order dated 2nd May, 2018 only to the extent it directs",,,

the appellant to use the font size of only 12 pixel in the print media. The rest of the directions made in para 9 of the order dated 2nd May, 2018 are",,,

hereby set aside and quashed.,,,

27.So far as the challenge to the order dated 13th April, 2018 is concerned, it is premised on consent of the appellant/defendant, as noted in para 6 of",,,

the said order. I.A.No.4933/2018 whereon this order was recorded is still pending. We therefore, reject the challenge to the order dated 13th April,",,,

2018.,,,

It is made clear that nothing herein shall be considered as an expression of opinion on the merits of the contentions made by either parties. The,,,

ld. Single Judge shall proceed with the matter, uninfluenced by the present order.",,,

This appeal is disposed of in the above terms. In view of the disposal of the appeal, the application does not survive for adjudication and is",,,

disposed of.Dasti under signatures of the Court Master.,,,