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2006 DIGILAW 3089 (MAD)

P. C. Balakrishna Raja v. S. K. P. Thirumurugan

2006-11-14

G.RAJASURIA

body2006
Judgment :- 1. This Second Appeal is directed against the judgment and decree dated 28.09.1995, passed by the Sub-Court, Tenkasi in A.S. No.85 of 1993 which was filed by the defendant as against the judgment and decree, dated 30.04.1993, passed by the District Munsif Court, Tenkasi in O.S. No.100 of 1991 which was filed by the plaintiff as against the defendant claiming damages for a sum of Rs.10,000/-. 2. A resume of facts absolutely necessary for the disposal of this Second Appeal would run thus: The second appellant herein Balakrishna Raja filed the Original Suit O.S. No.100 of 1991 in the Court of District Munsif, Tenkasi as against the respondent Thirumurugan herein claiming damages to a tune of Rs.10,000/- for having defamed the second appellant and the Trial Court awarded Rs.2,000/-. 3. Being aggrieved by the said judgment and decree of the Trial Court, Thirumurugan preferred the Appeal in A.S. No.85 of 1993 in the Court of Sub-Court, Tenkasi which set aside the Trial Courts judgment and dismissed the Original Suit O.S. No.85 of 1993 by allowing the Appeal. 4. Being aggrieved by the judgment of the First Appellate Court, the plaintiff-Balakrishna Raja has preferred this Second Appeal, which has been admitted to decide the following substantial questions of law: "1. Whether the lower Appellate Court was right in holding that the respondent had proved his contention that Ex.A.3 was justified by truth? 2. Whether the lower Appellate Court erred in deciding the case on the plea of justification by truth when such a plea was not raised in the written statement and when there is no issue regarding the defence of justification by truth?" 5. Heard the learned counsel for the appellant. The respondent and his counsel were absent despite an opportunity having been given. 6. The learned counsel for the appellant would advance the argument to the effect that the act of the respondent herein having falsely complained as though the second appellant uttered out certain objectionable words as against the respondent, would prima facie amount to defamation. The unassailable and indubitable fact is that the respondent herein sent Petitions to the Chief Minister and to the Collector alleging inter alia that those words were uttered out by Balakrishna Raja while he was attempting to compromise the dispute between the respondent and. one Subramania Raja. 7. The unassailable and indubitable fact is that the respondent herein sent Petitions to the Chief Minister and to the Collector alleging inter alia that those words were uttered out by Balakrishna Raja while he was attempting to compromise the dispute between the respondent and. one Subramania Raja. 7. In Ex.A. 3, at Page No. 3 the following are found set out by the respondent: TAMIL Those Tamil sentences could be translated near about as under: "Suddenly, Thiru. Balakrishna Raja shouted, if you do not agree for the compromise, we will set on ablaze your car; who will question it, we shall see. I with the influence of higher officials whom I know, would square up the complaint as against him (Subramania Raja). I will physically liquidate you." 8. The grievance of the Balakrishna Raja is that he did not utter out such words and even then the respondent herein falsely alleged in Ex.A.3 as though he uttered out those words/sentences. Even assuming that the respondent falsely alleged as though Balakrishna Raja uttered out those words it did not amount to defamation. Those words are only intimidating/ threatening words. Simply because the respondent alleged that Balakrishna Raja uttered out such words, it cannot be construed that reputation of Balakrishna Raja had gone out. Those alleged words are not so filthy or obscene so as to infer that a person who allegedly uttered such words must be a man of debased character or an immoral person. 9. The learned counsel for the respondent/appellant has argued that there is no absolute privilege available in favour of the respondent in incorporating such words in his Petition. The respondent/defendant in his deposition as D.W.1 would narrate that in the process of effecting compromise Balakrishnara Raja did utter out such words. The fact remains that there was attempt to compromise ended in a fiasco. However, D.W.1 would narrate that since the respondent/defendant was not agreeable for the compromise suggested by the plaintiff, he uttered out such words. 10. The First Appellate Court gave a finding to the effect that in sending such Petitions to the various officials, the respondent/defendant had no bad, intention to defame Balakrishna Raja. Even for argument it is taken that in a case the defendant fails to prove the allegations as against the plaintiff it would not always result in making liable for defamation. The First Appellate Court gave a finding to the effect that in sending such Petitions to the various officials, the respondent/defendant had no bad, intention to defame Balakrishna Raja. Even for argument it is taken that in a case the defendant fails to prove the allegations as against the plaintiff it would not always result in making liable for defamation. The Trial Court was of the opinion that absolute privilege was available only in complaining matters to the police and to the Court. According to the Trial Court, the defendant complained the matter to the Chief Minister and to the Collector and thereby, no privilege is available on his part. The Trial Court simply considered only the defence absolute privilege which obviously the defendant cannot be presided of service for the reason that the Petition/Complaint given by him was addressed to the Chief Minister and copy marked to the Collector and Police Officials. But the fact remains that the defendant addressed such letter for the purpose of protecting his own interest and for safeguarding from jeopardy. In such a case, the defence `qualified privilege is very much applicable in his favour. 11. In this connection, an excerpt from the treatise of Ramasway Iyer s The Law of Torts, IX Edn, at pg.No.395 would run thus: "Private interest of the defendant: The following are instances: a statement made in the assertion of defence of property or reputation of himself or his principal, employer, client or other person in whom he has a Legitimate interest like a relation or a friend, a notice by a creditor to an auctioneer not to part with the debtors goods as the debtor was in insolvent circumstances, notices between litigants or their solicitors, a letter to the Secretary for War requesting his intervention to make the plaintiff, an officer in the Army, pay a debt due to the defendant, an accusation of a crime, say theft of ones property, made by him to the suspected offender or to a third person to obtain information or detect the criminal or recover the property, or to the police for a like purpose, statement by an employer of his reasons for discharging a servant made in the presence of a third person called by him to bear witness to the fact of discharge and the payment of past wagons, a reply to attacks made on ones conduct or character. In Turner v. Metro-Goldwyn Mayer Pictures Ltd. the House of Lords held that a letter sent by the defendants, film producers to the BBC about the plaintiff, a film critic, who made an adverse broadcast on one of their films, was privileged as they had a right to protect, their financial interests. The letter suggested that the plaintiff was out of touch with the tastes and entertainment requirements of picture-going millions and should be prevented from harming the film industry by her broadcasts. A person may have a right to make a statement to explain his words or acts. For instance, where the footman and cook of the defendant went to him separately and asked him why they were dismissed and he replied to each, `you were both robbing me, two actions brought by them were dismissed. If they sent a friend to ask him whether he said so, he would be within his rights in repeating the charge to the inquirer. However there is no such protection for a person who originates a slanderous statement without any privileged occasion for doing so and on being asked about it, repeats it. For instance, if a person circulates a false report about another and the latter in the company of his friends as witnesses asks him to withdraw or prove it, he cannot repeat the slander and plead privilege, otherwise every defamer would get a licence to repeat his calumnies." 12. Unless one could see some malice in making such complaint the defendant cannot be fastened with liability. The First Appellate Court held that the justification of truth was in favour of the defendant. In the written statement, the defendant clearly spelt out of his defence i.e., `justification of truth. In such a case, in the Second Appeal, the plaintiff cannot be heard to say that the defendant did not plead `justification of truth. 13. An excerpt from the treatise of P.S.A. Pillars Law of Torts, IX Edn. at pg.No.83 would run thus: "....(6) Self-Protection: Statement made to protect defendants own interest: Law view with leniency statements made by one person against another in the heat of passion when he is charged with dishonourable conduct or otherwise provoked. 13. An excerpt from the treatise of P.S.A. Pillars Law of Torts, IX Edn. at pg.No.83 would run thus: "....(6) Self-Protection: Statement made to protect defendants own interest: Law view with leniency statements made by one person against another in the heat of passion when he is charged with dishonourable conduct or otherwise provoked. If my servant A, for example, informs me that B, another fellow servant, has stolen money while purchasing vegetables for me in the market and I accuse B of that and if B were to make counter charges of theft and pilfering against A, the statement of B on this occasion will be privileged even if it is false, provided he had reasonable ground-to believe that they were true. A person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statement he may make about the person who attacked him will be privileged provided, it is published bona fide and is fairly relevant to the accusations made. The law justifies a man in repelling a libellous charge by a denial or explanation. He has a qualified privilege to answer the charge, and if he does so in good faith, and what he publishes is fairly an answer and is published for the purpose of repelling the charge, and not with malice, it is privileged though it be false. Thus, while a policy holder in the course in the course of dispute with, an insurance company published a pamphlet accusing the directors of fraud and the directors published a pamphlet in answer declaring the charges to be false and calumnious and also asserting that in a Suit which he had instituted the plaintiff had sworn (in support of those charges) in opposition to his own handwriting, Cockburn, C.J. ruled that the directors pamphlet was privileged and directed the jury that if they were of opinion that it was "published bona fide for the purpose of the defence of the company and in order to prevent these charges from operating to their prejudice and with a view to vindicate the character of the directors, and not with a view to injure or lower the character of the plaintiff, they ought to find for the defendants. It is clear that the privilege must be used as a shield of defence, not as a weapon of attack. It is clear that the privilege must be used as a shield of defence, not as a weapon of attack. The privilege is not confined to statements made in answer to an attack on personal character. A statement by a man in defence of his property against an injurious statement concerning it is also privileged. In Osborn V. Boulter a publican complained to the brewers who supplied him with beer that it was of poor quality. They retorted that they had heard rumours that the poorness of the beer was due to watering it by the publican and they published this statement to a third party. It was held to be privileged." 14. As such the statements made by the defendant protect himself would attract qualified privilege. The onus of proof on the plaintiff initially to prove that the defendant made such complaint to non judicial authorities with an intention to defame the plaintiff. Only on discharge of the initial burden by the plaintiff, the defendant would be burdened with the responsibility of showing that his case is covered by anyone of the defences available under tort. Here in this case the plaintiff failed to prove the malice but on the other hand the defendant clearly set out that there was no malice at all in making such Petition/Complaint but it was done only for the purpose of seeking protection to himself. 15. There is nothing on record to show that no such incident as complained of by the defendant took place. On the one hand, Balakrishna Raja in his deposition would state that he did not utter out any such words where as D.W.1 would narrate that Balakrishna Raia did make such statements as against the defendant. In such a case, the deposition of D.W.1 cannot simply be thrown away as it was not corroborated by any other witness. In matters of this nature, the performance of probabilities have to be considered and it is in favour of the defendant. Absolutely there is no iota or shred of evidence to show that because of such Complaint his reputation had done down. In the facts and circumstances of the case, it is clear that the defendant simply aired his genuine grievances in his complaint and in such a case, it would not amount to defamation. Accordingly, the First appellate Court was right in arriving at the conclusion. 16. In the facts and circumstances of the case, it is clear that the defendant simply aired his genuine grievances in his complaint and in such a case, it would not amount to defamation. Accordingly, the First appellate Court was right in arriving at the conclusion. 16. Accordingly, the first substantial question of law is answered to the effect that the respondent showed the preponderance of probabilities of truth in Ex.A.3. 17. The second substantial question of law is answered to the effect that, the cumulative reading of the written statement would clearly show that the defendant raised the plea of justification of truth and the First Appellate Court cannot be found fault with even though there may not be any specific issue framed by the Trial Court. There is also nothing to show that by such non-framing of specific issue touching upon the justification of truth, the plaintiff was prejudiced in any manner. However, the Trial Court framed issue in general terms and the plaintiff has not proved to have been prejudiced by such non-specific issue. 18. In the result, there is no merit in the Second Appeal and the same is dismissed. However, there is no order as to costs.