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2009 DIGILAW 105 (JK)

Mushtaq Ahmed Mir v. Akash Amin Bhat

2009-03-12

MUZAFFAR HUSSAIN ATTAR

body2009
1. Decree and judgment dated 5th Nov. 2007 passed by ld. Principal District & Sessions Judge Kupwara in civil suit titled Mushtaq Ahmed vs. Akash Amin Bhat is challenged in this civil 1st. Appeal by appellant (hereinafter referred to as `plaintiff). 2. The plaintiff instituted civil original suit in the court of ld. Principal District Judge Kupwara against respondent, seeking therein for issuance of a decree to the tune of Rs. Two lacs as compensation and damages in his favour and against the respondent. The plaintiff claimed to be an indigent person and sought permission of the court to institute the suit in the forma pauperis. The foundation for seeking above referred decree was laid in the suit on the ground that because of publication made by respondent in his News paper "Tamil-e-Irshad" of which he is printer, publisher and editor, the reputation of the plaintiff has gravely and deeply suffered in the society. The plaintiff pleaded that respondent published a News items in his News paper on 20.03.06 stating therein that besides of other persons the plaintiff has been ordered to be lodged in Jail for being allegedly involved in the commission of heinous offence of murder under the orders of the ld. Sessions Judge Kupwara. The plaintiff in the suit has pleaded that he in no way was connected with the commission of the offence and was never lodged in any jail under the orders of the ld. Sessions Judge Kupwara. The plaintiff stated that because of publication of this libelous News his reputation in the eyes of his relatives, friends and society at large suffered badly and he though, possess good reputation was because of the News item published by the respondent looked down upon by "Tom Dic and Hary". 3. The plaintiff, accordingly, instituted a suit seeking decree for damages/compensation to the tune of Rs.2/- lacs against the respondent. The plaintiffs suit was instituted in forma pauperis on 19.06.06. The ld. trial court on that date ordered for registration of the same and issuance of notice. The ld. trial court directed the Collector Kupwara to submit report about claim of the plaintiff being an indigent person. The notice was served on the respondent and despite service he chose not to appear and was accordingly proceeded ex-parte on Sept. 1st. 2006. trial court on that date ordered for registration of the same and issuance of notice. The ld. trial court directed the Collector Kupwara to submit report about claim of the plaintiff being an indigent person. The notice was served on the respondent and despite service he chose not to appear and was accordingly proceeded ex-parte on Sept. 1st. 2006. After receipt of the report from Collector and after examining three witnesses of the plaintiff, the trial court vide its order dated 14.02.2007 allowed the plaintiff to institute the suit as an indigent person and suit was ordered to be registered and notice was issued to the respondent. The respondent was proceeded ex-parte as despite service of notice he chose not to appear before the trial court. 4. The proceedings in the suit were conducted in ex-parte and evidence of the plaintiff was recorded in support of his case by the trial court. The trial court in terms of the impugned judgment and decree, however, dismissed the suit of the plaintiff. The plaintiff has challenged the said decree and judgment by filing of this appeal on the grounds that the trial court has failed to appreciate the case of the plaintiff and has also failed to apply its judicial mind to the evidence produced by the plaintiff. The plaintiff has further stated that the decree and judgment under challenge is rendered bad in law as the ld. trial judge has failed to appreciate the controversy in its correct legal perspective. 5. Heard ld. counsel for parties. Considered the matter. The ld. trial Judge has dismissed the suit of the plaintiff on the ground that though, he was neither involved in the criminal case nor was he arrested in pursuance of the orders of the Sessions Judge Kupwara as he did not figure as accused in the said case, but as his other relatives were involved in the commission of offence and had suffered incarceration, so alleged commission of offence by the relatives of the plaintiff would also impair the plaintiffs credibility in the society. Secondly the ld. trial Judge at page 7 of his order has observed as under:- "...The plaintiff no doubt does not figures in the charge sheet but Habib Mir and two sons of Habib Mir are figuring in the said charge sheet. Secondly the ld. trial Judge at page 7 of his order has observed as under:- "...The plaintiff no doubt does not figures in the charge sheet but Habib Mir and two sons of Habib Mir are figuring in the said charge sheet. Thus printing and publishing the news with regard to the plaintiffs arrest does not lower down the status and prestige of the plaintiff whose other family members are involved in the crime. A statement made in the discharge of a legal, social or moral duty or for the protection or furtherance of an interest to a person who has a corresponding duty or interest to receive it is protected by qualified privilege. The defendant had not malice or personal grudge against the plaintiff in order to malign him in the said crime. As already stated hereinabove that the plaintiff has earlier filed the suit in the shape of an application for permitting him to sue against the defendant / non applicant as an indigent person as he has no means and source to pay the court fee which has been granted by the Court vide its Order dated 14-02-2007. Thus to the satisfaction of the Court a person of low integrity will not be lowered down in case his name comes in a news which is labeled by the plaintiff to be a defamatory and when the plaintiff is not in a position to pay court fee on the suit amount he cannot seek damages for defamatory statement allegedly made against him in the so called news items published and printed by the defendant in its newspaper in its issue dated 20-03-2006." 6. The ld. trial Judge after referring to the evidence of the plaintiff has not discussed the same nor has recorded any finding by way of giving reasons either to accept or reject the evidence of the witnesses of the plaintiff. The ld. trial judge however, on the assumption that plaintiffs relatives are involved in criminal case as such he cannot have any status or reputation in the society, as per conclusion of the ld. trial judge he wont suffer any injury to his reputation nor can be defamed . The ld. The ld. trial judge however, on the assumption that plaintiffs relatives are involved in criminal case as such he cannot have any status or reputation in the society, as per conclusion of the ld. trial judge he wont suffer any injury to his reputation nor can be defamed . The ld. trial Judge has further assumed that as plaintiff has instituted a suit in forma pauperis so being not possessed of sufficient worldly possessions cant have any respect in the society and it is on these two assumptions the suit of the plaintiff has been dismissed. 7. The respect and reputation of a person is not dependent upon how much wealth he has accumulated. A human being is entitled to lead respectful life in the civilized society. The human rights of an individual do pronounce that every individual shall be entitled to have respect in the society. Pronounced and professed values of the society do not state that only that person who has amassed worldly possession is entitled to respect and a poor man has no respect. If this assumption is followed and accumulation of wealth is made the touchstone for determining the reputation and respect one can have in the society, then a great dis-service will be done to the entire society. Such type of approach would prompt the people to amass wealth by hook or by crook and entire society will be ushered into an anarchical situation. No reasonable person will accept the reason given by ld. trial Judge for dismissing the suit of the plaintiff. Our society is already adrift in the ocean of debasing the human values. Conscious efforts are to be made to ensure that there is no further deterioration in the human values. The ground on which suit has been dismissed is not only unreasonable but also offends once conscience. 8. Since the ld. Trial Judge has not discussed the evidence nor has recorded any reason or ground either to accept or reject the same, as such this aspect of the matter is left open for the trial court to consider. 9. This appeal in view of the above discussions succeeds and is allowed. The decree and judgment passed by the trial court is set aside. The case is remanded back to the trial court for dealing with the same in accordance with law. 9. This appeal in view of the above discussions succeeds and is allowed. The decree and judgment passed by the trial court is set aside. The case is remanded back to the trial court for dealing with the same in accordance with law. The trial court is not debarred to consider whether plaintiff continues to be an indigent person and to order his dispaupering in accordance with Order 33 Rule 9 of Civil Procedure Code. Appeal is allowed.