SOUMEN SEN,J. - (1.) A split verdict on the interpretation of Order 26, Rule 10A read with Section 151 of the Code of Civil Procedure has resulted in the present reference.
(2.) The appeal arose out of a decree passed in Money Suit No. 5 of 1998 instituted by the plaintiff-appellant against the respondents. The learned Second Civil Judge, Senior Division, Barasat dismissed the suit on the ground that the plaintiff has failed to prove his case. The plaintiff-appellant is the sole proprietor of the M/s. Ranjeeta Enterprises. The plaintiff has produced the Bengali feature film 'PREM SANGEE'. According to the plaintiff-appellant the plaintiff incurred costs of Rs. 28,02,545/- in production of the said colour feature film. The plaintiff entrusted the work of developing the first positive print for release of the feature film to the defendant no. 1 West Bengal Film Development Corporation. On or about 2nd December 1997 after obtaining the Censor Certificate, the plaintiff made arrangements for exhibiting the film and, in due course, the plaintiff entrusted the defendant No.1 and placed orders on the said defendant for developing four more positive prints of the film for releasing in Kolkata and in the districts. The plaintiff contends that the defendant No.1 is having a laboratory by the name of Rupayan Laboratory and the said laboratory was entrusted with the aforesaid task of developing an additional four more positive prints of the said feature film for release in Kolkata and in the districts of West Bengal. In order to develop the said prints the plaintiff made arrangement for supply of raw stock of Kodak 35 MM films directly to the laboratory of the defendant Nos. 1 to 4. It was allegedly reported to the plaintiff on 12th December, 1997 that the 2nd, 3rd, 4th and 5th prints were found to be of poor quality, the same being foggy, hazy and the insufficient lighting display. On the basis of such alleged reporting, the plaintiff wrote a letter dated 15th December, 1997 requesting the defendants to take steps for removal of such defects. According to the plaintiff, concerned defendants did not take any steps to remove the defects. The prints being defective, there were few viewers and the cinema hall owners did not exhibit the film for long. The plaintiff further contended that the Print No.1, being free of defects, was exhibited successfully at Shyamsree Cenema in the then district of Midnapore. The plaintiff contends that the film suffers the set back and flopped because of the defective prints and the plaintiff-appellant had incurred huge losses. The plaintiff alleged that due to the inaction on the part of the defendants in taking timely and proper steps to remove the defects in the Print Nos. 2, 3, 4 and 5, the plaintiff has suffered a total loss of Rs. 51,46,869 and, accordingly, has prayed for recovery of the said amount by way of damages being cost of production, cost of raw film, printing charges and publicity expenses incurred by him.
(3.) On the aforesaid premise the plaintiff filed a suit being Money Suit No. 5 of 1998 in the Court of Civil Judge, Senior Division, Barasat, North 24 Parganas claiming damages on the allegation that the film did not attract viewers on account of defective printing. Summons were served on the defendants. The defendant nos. 1 to 4 however did not contest the suit and the suit was heard ex parte.;