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2004 DIGILAW 93 (HP)

Sarwan Dass v. Statesman Ltd.

2004-05-11

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. In this suit the plaintiffs have prayed for a decree for Rs 10,00,000/- as compensation for defamation and mandatory injunction directing the defendants to publish apology in all the leading vernacular and English Dailies. 2. Case of the plaintiffs, as made out in the plaint is that the plaintiffs are seeking the relief on account of defamation and damage caused to the image and reputation of the plaintiffs and other members of their respective Associations by the defendants by publishing a defamatory news item in the daily newspaper "The Statement" dated 26.5.1998. It is averred that the plaintiffs are in the service of the State Government of Himachal Pradesh for over many decades and as public servants have long record of distinguished and selfness service and are holding the key posts in the Organisation and Associations of their respective services. They possess good reputation, good character, moral and exemplary service record and are well known to the public and various Associations and are having good reputation within and outside the State. Defendants No.2 is the Editor-in-Chief of the Statesman which is being published by defendant No.4. The said Newspaper has wide circulation inside and outside the country. The defendants deliberately published a news item under the caption "HIGHLY PAID GOVT. EMPLOYEES DRAIN HIMACHAL EXCHEQUER", in the issue of the Statesman dated 26.8.1998 which item is offensive, obnoxious and smacks of the malice and mischief intended to tarnish the reputation of the plaintiffs and their other brother officials and is based on conjectures and surmises in utter disregard of the standards of journalistic norms and ethics and abuse of freedom of publication. The said news item has been compiled by defendant No.3 at the behest of other defendants and the origin of the news item is `Statesman News Service'. Because of the publication of the said news item the plaintiffs and their family members have to face embarrassing situation and have to hear disparaging remarks from the passer-by while going to public places such as market etc. The defendants who had designedly and calculatedly published the item with underlying mischief in damaging the reputation and image of the plaintiffs by using the terms "Babus", "Pot-belled Babus", `Petty Babus' etc. which has lost its literal meanings over the period due to disparaging sense and meaning attached to it by the media. The defendants who had designedly and calculatedly published the item with underlying mischief in damaging the reputation and image of the plaintiffs by using the terms "Babus", "Pot-belled Babus", `Petty Babus' etc. which has lost its literal meanings over the period due to disparaging sense and meaning attached to it by the media. The news item has depicted the defendants (plaintiffs') as corrupt `Babus' who have to be in Bars and Restaurants and offered women which facts are far from truth. The news item has thus caused immeasurable mental as well as physical agonies to the plaintiffs and their family members. The cumulative direct effect of the said act of publication of news item by distorting the facts was to ruin the career and reputations of the plaintiffs and obliterate all their contributions to the society and in administration. It has been mischievously and maliciously mentioned in the news item that there is a pressure on developmental/activities because of the pay being granted to the employees in the State of Himachal Pradesh. Referring to the political activities of the employees, as recorded in the news item, it has been claimed that the facts and the truth is that the employees are disciplined and law abiding members of the Government governed by various codes of conduct and rules etc. The use of terms like "Babus" in efficiency and indiscipline, the employees being most under worked army of clerks. K "Petty Babus" ands "Corrupt Pot Bellied Babus", as used in the news item vis-a-vis the plaintiffs and their co-employees are derogatory and uncivilized. It is also claimed that the systematic attack of the employees is highlighted in Column 3 of the news item whereby baseless and wild allegations to the effect that a young* executive of a leading Private Cement Plant, had claimed that he had regularly B bribed the employees to get his work done have been made. The allegations that employees disappear to their nearby villages on Friday afternoons only to return on Monday afternoons without leave are also preposterous and untruthful. The allegations against the employees like 1 no responsibility' and very little accountancy have no factual foundation. The allegations that employees disappear to their nearby villages on Friday afternoons only to return on Monday afternoons without leave are also preposterous and untruthful. The allegations against the employees like 1 no responsibility' and very little accountancy have no factual foundation. It is, thus, finally claimed that combined reading d , Paras-3 to 11 of the news item leaves no doubt whatsoever in the minds of the general public and is a scathing attack on the helpless employees of the Association, therefore, the plaintiffs are entitled to damage for mental torture, harassment, agony, humiliation they and their family members have suffered and are undergoing at present because of wrongful acts of the defendants individual and jointly. Hence, this suit. 3. Hence, this suit. 3. The defendants contested the suit In their written statement, they raised the preliminary objections that the suit in the present form is not maintainable, the suit lacks material particulars, the suit is not maintainable as the plaintiffs have no locus-standi to institute the suit, the plaintiffs are estopped from filing the present suit, the suit is not maintainable because of the defect in the notice served or defendant No.3, the suit is not maintainable because of the total variance in to claim as in the notice and that in the plaint, the suit is not constituted in consonance with Order 6, Rule 7 and other provisions of the Code of Civil Procedure, the suit el the instance of unincorporated associations is not maintainable, the suit is incompetent as it has been filed by indefinite, under terminate and unidentifiable body of persons and because the news item does not `descent to particulars and individuals to make it a libel', the suit is not maintainable as the law does not recognise any group defamation as actionable and the publication is a fair and bonafide comment on a matter of public interest and is an honest expression of opinion made in good faith and for the good of the public with an honest motive and acted under a sense of duty in public interest, the plaint does not disclose the basis on which the plaintiffs are entitled for damages, no proper court fee has been affixed, therefore, the plaint is liable to be rejected, the prayer for interest is not maintainable, the plaintiffs are not entitled to the relief of mandatory injunction and the plaint has not been property verified, hence, liable to be rejected. 4. On merits, while repeating most of the preliminary objections, it has been claimed that the news item in question was not actuated with malice and is an honest expression of opinion made in good faith and for the good of the public with honest motives. The particulars of the plaintiffs being in Government service, length of their service and their reputation as employees, as claimed in the plaint, has been denied for want of knowledge. The particulars of the plaintiffs being in Government service, length of their service and their reputation as employees, as claimed in the plaint, has been denied for want of knowledge. It has been denied than the new item is offensive, obnoxious and smacks of the underlying malice and mischief intended by the defendants to tarnish the image and reputation of the plaintiffs or to cause them embarrassment but it is a fair and bonafide comment on a matter of public interest Publication of news item, however, has not been disputed but the malice or intention to lower down the reputation of the plaintiffs or that the news item is not substantiated by factual position have been denied. It is also denied that the news item has lowered down the reputation of the plaintiffs in the estimation of the others. The relief claimed in the suit has, thus, been denied. 5. On the pleadings and with the consent of the parties, the following issues were framed. 1. Whether the plaintiffs are entitled to damages? If so, to what extent and from whom? OPP 2. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPP 3. Whether the plaintiffs have no cause of action? OPD 4 Whether the plaint/suit is bad for want of better particular? OPD 5. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 6. Whether the new item published in the paper is fair and bonafide and as such falls in the exceptions, as alleged? OPD 7. Whether the plaintiff is not entitled to mandatory injection, as prayed for? OPD 8. Whether the suit in foe present form is not maintainable ?OPD 9. Relief. 6. Parties led evidence. 7. Arguments were heard. Issue No.8: 8. The most vital question for determination in this suit is about the maintainability of the suit which goes to the root of the case. Therefore, this issue is taken on first for determination 9. OPD 8. Whether the suit in foe present form is not maintainable ?OPD 9. Relief. 6. Parties led evidence. 7. Arguments were heard. Issue No.8: 8. The most vital question for determination in this suit is about the maintainability of the suit which goes to the root of the case. Therefore, this issue is taken on first for determination 9. It was contended by the learned counsel for the defendants that the present suit is not maintainable because the associations allegedly represented by the plaintiffs as office bearers are not shown to be registered associations and the suit has not been filed in the representatives capacity and even if assumed to have been filed as such the requisite permission of the Court to sue in representative capacity has not been obtained. In case the suit has been filed in individual capacity the plaint does not disclose any cause of action. Therefore, in view of the vague nature of the pleadings qua status of the plaintiffs in which they have brought the suit, the suit is not maintainable, therefore, is liable to be dismissed. 10. On the other hand, the learned counsel for the plaintiffs contended that the admitted write up is defamatory qua the plaintiffs in their individual capacity as it is qua the members of their association, therefore, the suit is maintainable in the present form. 11. The memo of parties to the suit reads as under- "1. Sawaran Dass Bhatoa, under Secretary (IPH), Govt, of HP, Shimla, President of H.P.E Seed Gazetted Officer's Association, S/O Late Sh. Baru Ram, R/O Vill. & P.O. Bathri, Teh, & Distrid Una (H.P.) 2. Baldev Singh Thakur, Supdt S & T Section, HP Secretariat, Vice President Class-III Association, S/O Sh. Balak Ram, R/O Vill, Jatrog, P.O. Darwra, Teh, Kasauli, Distt. Solan (HP). 3. Daulat Ram Chauhan, Sr. Asstt. SA R & 1-1, H.P. Sed. Shimla, General Secretary, H.P. Sectt Services, Class-III Association, S/o Late Sh. Narain Singh, R/O Vill. Mastot, P.O. Kaloti, Teh, Chirgaon, Distt. Shimla (HP). 4. Laxman Singh, Sr. Clerk H.P. Sectt GAD-A Section, Executive Member, HP Sectt. Services Class-III Association, S/o Late Sh. Ram Dutt, R/o Vill. Brait, P.O. & Teh, Theog, Distt. Shimla (HP). 5. Roshan Lal, Driver, H.P. Sectt GAD-A Section, Vice President, H.P. Sectt Driver, Association, S/O Late Sh. Munshi Ram, R/o V.P.O. Kalahod, The. Sundemagar, Distt, Mandi (HP). 6. 4. Laxman Singh, Sr. Clerk H.P. Sectt GAD-A Section, Executive Member, HP Sectt. Services Class-III Association, S/o Late Sh. Ram Dutt, R/o Vill. Brait, P.O. & Teh, Theog, Distt. Shimla (HP). 5. Roshan Lal, Driver, H.P. Sectt GAD-A Section, Vice President, H.P. Sectt Driver, Association, S/O Late Sh. Munshi Ram, R/o V.P.O. Kalahod, The. Sundemagar, Distt, Mandi (HP). 6. Bajan Singh Rangra, Jamedar, O/O PWD Minister, H.P. Sectt President, H.P. Sectt. Class-IV Association, S/o Late Sh. Gursai Ram, R/o Vill Lower Ball P.O. Dhalara, Teh. Sarkaghat, Distt. Mandi (HP). Plaintiffs. Versus 1. The Statesman Limited through its Managing Editor, Shri Ravindra Kumar, Statesman House, 148 Barakhamba Road, New Delhi. 2. Sh. R.C. Irani, Editor-in-chief. The Statesman, Statesman House, 148 Barakhamba Road, New Delhi. 3. Sh. Baldev S. Chauhan, Press Correspondent The Statesman, C/o Sh.C.R. Irani, Editor-in-Chief, The Statesman, House, 148 Barakhamba Road, New Delhi. 4. Sh. Biby Thomas, Publisher, The Statesman Printing Press, Statesman House, 148 Barakhamba Road, New Delhi....Defendants." 12. Para-1 of the plaint reads as follows:- "1. That the present suit is being filed by the plaintiffs seeking the relief of decree of damages on account of defamation and damage to the image and reputation of the plaintiffs and other member of their respective Associations done by the defendants hereinabove mentioned by publishing a news item in their Daily News Paper published in the name and stile of "The Statesman" dated 26m August, 1998 which news item was actuated with the malice intent on the part of the defendants so as to calculatedly cause irretrievable harm and damage to the reputation, name, fame and standing in the society of the plaintiffs hereinabove mentioned, which they have painstakingly built over the years." 13. A combined reading of the memo of the parties and Para-1 of the plaint reveal that the relief claimed in the suit is for the plaintiffs and "members of their respective associations'. If so the plaintiffs have to establish that they can sue on behalf of the association or other members of the association or they are suing in representative capacity. 14. There is nothing on the record to prove that each of the associations of which the plaintiffs are the office bearers is a registered associations or the plaintiffs have been duly authorised by resolutions passed by such associations to institute the suit on behalf of the members of such associations. 14. There is nothing on the record to prove that each of the associations of which the plaintiffs are the office bearers is a registered associations or the plaintiffs have been duly authorised by resolutions passed by such associations to institute the suit on behalf of the members of such associations. The legal position, however, is that a member or officer bearer of an unregistered association cannot sue on behalf of other members of such associations. 15. In HAJ. Gidney v. Anglo Indian and Domiciled European Association & Anr. (AIR 1930 Rangoon 177), while dealing with the subject in hand the High Court of Rangoon held as under:- "It will be convenient to deal first with the questions of law which arise in the case. Appellants learned advocate says that an unincorporated association, such as the "Federation' admittedly was at the time when the alleged libels were published, cannot be libelled as an association, since it is not a legal person, and that the remedy of the members of such an association, if they were libelled is to sue personally. He alleges further that one member of such an association cannot be allowed to sue on behalf of the other members, and that the incorporation of the association after the publication of the libels does not enable the president of the incorporated association to sue on behalf of the association or of the other members of the. associations. No direct authority for the first of the propositions has been cited, but it was suggested on high authority in the case of the London Association for the Protection of Trade v. Greenlands Ltd. That an unincorporated associations as such cannot be guilty of a libel because `as an entity it could neither publish nor authorise the publication of a libel,' and it would seem to follow that as an entity it could not suffer damage by reason of a libel. would, therefore, hold that the `Federation' as an unincorporated association, which it was at the time of the publication of the alleged libels, could not suffer damage and therefore could not sue." 16. In the Advocate Co. would, therefore, hold that the `Federation' as an unincorporated association, which it was at the time of the publication of the alleged libels, could not suffer damage and therefore could not sue." 16. In the Advocate Co. Ltd. v. Arthur Leslie Abraham (AIR (33) 1946 Privy Council (13), it has held as follows:- "It is enough to say that if on a fair construction the words are spoken of a class or body of persons, an individual member of the class or body cannot sue in respect of them unless there are circumstances that show that they may be aimed at him." 17. In view of the above position in law, the plaintiffs could not sue even in their capacity as the office bearers/members of their association on behalf of all the members of the respective associations. 18. Assuming that the plaintiffs have sued for and on behalf of the members 1 of their associations in representative capacity, still the suit is not maintainable. To institute a suit in representatives capacity, the plaintiff (s) has to seek permission of the Court to sue on behalf of or for the benefit of all persons having the same interest as provided under Rule 8 Order 1 of the Code of Civil Procedure, the plaintiffs have not sought the requisite permission. Therefore, the suit is not maintainable even as a representative suit for want of fulfilling the essential condition of obtaining judicial permission by the plaintiffs to sue in representative capacity. 19. The view, I have taken hereinabove, is fully supported by the decision in The Assistant Commissioner Hindu Religious and Charitable Endowment, Salem and others v. Nattamai K.S. Ellappa Mudaliar and others (AIR 1987 1 Madras 187), wherein it has been held as under- "9. Order 1, Rule 8 , Code of Civil Procedure enables one or more persons to Issue on behalf of numerous persons having the same interest with the permission of the Court If an individual seeks to advance the claim of group of persons, he is enabled to do so, by virtue of the provisions of Order 11, Rule 8 , Civil P.C., but the procedure prescribed therein should be strictly followed. The benefit of the rule is available only to persons who fulfil the requirements thereof. The benefit of the rule is available only to persons who fulfil the requirements thereof. It is well known that there is a clear legislative concern in the entire Code indicating the Code should made judicial orders only after hearing he persons likely to be affected by any decision in any cause. If a ( person is permitted to sue as a representative of another, or a group of persons, it is a matter of far-reaching effect as it is likely to affect the interests of those who may not participate in the hearing of the suit. Such persons are obviously entitled to but forth their objections to the filing of the suit and to the capacity of the representative who seeks either to be the plaintiff or defendant and even to the merits of the cause. AH that will be possible only if the party sou* to be represented in given an opportunity tor raise objection, if any. It is only in accordance with the said salutary principle, the procedure in O.l. R. 8. Civil P C., has been prescribed. The object of the rule is to avoid unnecessary tedium and expense of litigate and to give a binding force to the decision which may be ultimately paste in the suit A person cannot seek to advance the claims of a group of persons or community without adopting the procedure under Order 1, Rule 8 , Civil P.C., if the relief is prayed for only on the basis of the rights of the community as such. It is no doubt true that O.l. R. 8, Civil P.C., purposes that each one of the numerous persons by himself has a right of suit if a person himself has no such right to sue, he cannot be permitted to sue on behalf of the others who have a right But the distinction has to be maintained between cases where the individual puts forward a right which he has acquired as a member of a community and cases where the right of the community is put forward in the suit If it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right If it is the latter, the procedure under O.l. R. 8. Civil PC., has to be followed and without doing so, no relief could be granted to the individual concerned." 20. It may be pointed out that the news item `Highly-paid govt employees drain Himachal exchequer" published in the paper in question does not specifically refer to Class-IV employees or the Drivers nor does it make any defamatory statement against such employees. Therefore, the suit by plaintiff Roshan Lal Driver (Plaintiff No. No 5) and Bajan Singh Rangra (Plaintiff No.6). Jamedar, on their behalf and/or on behalf of the irrespective associations is without any cause of action and is not maintainable. 21. There is nothing either in the news item or in the pleadings or in evidence from which it may be concluded that the news item has reference to the plaintiffs individually. Even for this reason the suit by the plaintiffs in their individual capacity, if deemed so, though not so in view of the contents of para-1 of the plaint, is not maintainable. 22. In view of the above discussion, it is held that this suit by the plaintiffs is not maintainable. This issue is, therefore, held infavour of the defendants. Issue Nos. 1 To 7: 23. Since the findings on issue No.8 above go to the root of the case and render the suit not maintainable and liable for dismissal, therefore, these issues do not survive for decision. Relief: 24. In view of the findings on issue No.8 above, this suit merits dismissal and is accordingly dismissed with costs.