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2011 DIGILAW 4470 (MAD)

Ist Petitioner v. Ist Respondent

2011-11-10

VINOD K.SHARMA

body2011
Judgment : VINOD K. SHARMA, J 1. The applicant / defendant no.2 has moved this application under Order XIV Rule 8 of the Original Side Rules, r/w Order VII Rule 11 of the Code of Civil Procedure, for rejection of the plaint in C.S.No.734 of 2011. 2. The contention of the learned counsel for the applicant is, that the plaint was liable to be rejected against applicant / defendant no.2, in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure, for non disclosure of cause of action. 3. The further contention of the learned counsel for the applicant was that except for vague allegation of conspiracy, the plaint does not disclose any facts, which, if taken with the law applicable, would give plaintiff the right or liberty to file suit against the applicant / defendant. 4. In order to appreciate this contention, it will be necessary to reproduce the relevant paragraphs of the plaint, on which reliance was placed, by the learned counsel for the parties, i.e. para nos. 8, 11(iii), 16, 20, 22 and 23 as under: "8. The plaintiff respectfully submits that since the child had behavioural problem and emotionally disturbed had been communicated by the Cheshire Homes that they needed immediate personal attention. So, the plaintiff had verified all the applications of proposed adoptive parents registered for adopting a child through the 2nd defendant. Among the applications, pending before the 2nd defendant the plaintiff had selected one which was submitted by Ms.Gemma Bridget DSilva, who is working as District Social Welfare Officer, Department of Social Welfare, Chennai and considered as fit person for adoption by the 2nd defendant. The child was given to Ms.Gemma Bridget DSilva, after taking an undertaking from her dated 08.02.2010 by the 2nd defendant that the child is handed over to Ms.Gemma Bridget DSilva in foster care for development and medical reasons as she was 4 years and 5 months old. Since all the legal procedures were not completed for adoption of the said child, the pre-adoptive foster care of the child Sweety was given to the said adoptive parent by the 2nd defendant based on the direction of the apex court and the guidelines of Central Adoption Resource Authority. Since all the legal procedures were not completed for adoption of the said child, the pre-adoptive foster care of the child Sweety was given to the said adoptive parent by the 2nd defendant based on the direction of the apex court and the guidelines of Central Adoption Resource Authority. Before granting the pre adoptive foster care of the child, the plaintiff herein had explained the legal implications to the parents and the latter willingly agreed to help the child needing personal care and protection. 11(iii)). The Additional Deputy Commissioner enquired as to what the plaintiff was and what her profession was. The plaintiff replied that she is a Social Worker employed in the Adoption Unit of Guild of Service, (Central). Then the Commissioner informed the plaintiff that there was complaint against the plaintiff with regard to alleged child trafficking etc., by a certain parent of a child escorted by Dr.D.P.Manorama, the 1st defendant who was misusing her official position. When the Commissioner further enquired as to why the plaintiff was indulging in giving children on adoption who are left behind by biological parents. The plaintiff replied that it was her job and the plaintiff is employed in the Adoption Unit. Then the Commissioner asked for the procedure on adoption and official documents relating to the procedure. To this the plaintiff had replied that the documents could not be removed at this late night and assured that the same would be made available along with the procedure on adoption on 19.06.2010. Afterwards the Commissioner told the plaintiff to give references of authorities in the State Social Welfare department, so as to verify the real facts on adoption procedure. At this the plaintiff gave the cell number of Assistant Director of Social welfare. The Commissioner spoke with her through the cell phone. At the end the Commissioner had instructed the plaintiff to make available the copy of documents and while doing so the Commissioner returned the plaintiff cell phone seized earlier. Then the Commissioner had allowed her to go home at 10.00 p.m,. The plaintiff after informing her office took the documents, Supreme Court Judgment and Central adoption Resource Authority Guidelines all in original and produced the same before the Commissioner at about 11.30 a.m. On 19.06.2010. Then the Commissioner had allowed her to go home at 10.00 p.m,. The plaintiff after informing her office took the documents, Supreme Court Judgment and Central adoption Resource Authority Guidelines all in original and produced the same before the Commissioner at about 11.30 a.m. On 19.06.2010. The Commissioner had visited the 2nd defendants office at 2.00 p.m. on the same day but could not meet the 2nd defendant due to his absence from the office and informed her that he was away on some personal work. Then the Commissioner had directed the plaintiff to show the admission register and attendance register of the children maintained by the 2nd defendant and the same were shown to the Commissioner. The Commissioner after going through the same had affirmed that there were no irregularities found from the same and also appreciated the position that admission register was maintained since the year 1988 on wards. 16. The plaintiff respectfully submits that while so Mr.Gokul Vannan (Reporter) under the 3rd defendant had published an article tarnishing the image and reputation of the plaintiff with defamatory and derogative statements on the strength of police complaints lodged by the 1st and 2nd defendants misusing and abusing their position. The 3rd defendant had gone overboard by calling the plaintiff "QUEEN-PIN of Adoption Ring" and alleging that her "Shaila Samuel, Social Worker working with Guild of Service, used the agencys name, stamp and other related documents such as authorization letter signed by Mr.K.N.George, Hon. Secretary of Guild of Services, and its registration Certification as said by the 1st defendant to carry out the unlawful adoption". In page 3 defendant to carry out the unlawful adoption". In page 3 of the edition dated 26.06.2010, the 3rd defendant stted that the plaintiff had cheated two other women in another case gave their children for adoption without committees knowledge. 20. The plaintiff further respectfully submits that the 3rd defendant after receiving the legal notice on 25.06.2010 never hesitated nor sought for any clarification from the plaintiff but, proceeded further to accuse the plaintiff by a publication dated 26.06.2010, alleging "ILLEGAL ADOPTION RACKET", "suspended queen – pin" and "habitual offender" by Mr.Gokul Vannan (Reporter) of the 3rd defendant along with an article stating that the Honble High Court had granted interim injunction with regard to the custody of the two children named Sweety and Thaneer. The 3rd defendant had published these articles only with the intention to damage the plaintiffs reputation and tarnishing her image further. The plaintiff submits that another legal notice was sent to the 3rd defendant on 26.06.2010 that the publication was totally derogative and defamatory and to restrain from any trial by media. The notice had further stated that the Honble High Court was seized of the matter and any further publication on the children will be held as a contempt of court. The 3rd defendant colluding with the 1st and 2nd defendant had again published an article on 30.06.2010 stating that the plaintiff was the alleged King Pin on adoption racket. 22. The plaintiff respectively submits that while the fact is so, without knowing any clarification of the above the first and second defendant colluding with the third defendant herein had published in their editions dated 23.06.2010, 26.06.2010 and 30.06.2010. By this repeatedly publication of various defamatory and derogative statements against the plaintiff amount to spoiling the image of the plaintiff which she had built up and gained by her in her life time. The above defamatory edition published by the defendant is wholly without any basisor truth and with a malafide intention of damaging the plaintiffs reputation and tarnishing the plaintiffs image and character. The plaintiff craves leave of this Honble court to read the edition dated 23.06.2010, 26.06.2010 and 30.06.2010 as part and parcel of this plaint. In their editions the third defendant called the plaintiff as "QUEEN PIN, "ILLEGAL CHILD ADOPTION RACKET", "was duped by NGR staffer; Govt. Official", "Shaila had cheated two other women", etc., which are all perverse, illegal, defamatory and beyond the truth. 23. The plaintiff respectively submits that the third defendant had circulations of editions all over India. The third defendant colluding with the first and second defendants had published these articles only with the intention to damage the plaintiffs reputation and tarnishing her image. All the contents and statements made by the defendants 1 to 3 are not only false, baseless, malicious allegations but are clearly motivated by ill-will and with malafide intention to damage the reputation of the plaintiff. All the action and inaction on the part of the defendants 1 to 3 have caused shame, embarrassment and intimidation besides causing great mental torture to the plaintiff. All the action and inaction on the part of the defendants 1 to 3 have caused shame, embarrassment and intimidation besides causing great mental torture to the plaintiff. The plaintiff had to spend much of her precious and valuable time in replying to her families, neighbours and friends who have been enquiring about the scandalous edition that was published by the defendant and the plaintiff was not able to face the relatives, neighbours and families due to the action and inaction of the defendants 1 to 3. Therefore, the image of the plaintiff had been considerably tarnished and had created a permanent scar to her reputation and name in the eyes of her families, neighbours, relatives, friends and the public. In fact, the counsels representing another publication Times of India had confirmed the collusion of the 1st and 2nd defendant by its letter dated 01.07.2010. Now the plaintiff has been put to irreparable loss due to the collusion of the 1st and 2nd efendants, more particularly giving defamatory and derogative statements against the plaintiff to the 3rd defendant." 5. Learned counsel for the applicant referred to paragraph nos. 20 and 22 of the plaint to contend that except for the vague allegation of collusion, there is absolutely no facts, which could show any cause of action to maintain the suit, against applicant / defendant no.2. 6. In support of this application, learned counsel for the applicant placed reliance on the judgment of the Honble Supreme Court in the case of Mohan Rawale vs. Damodar Tatyaba @ Dadasaheb and others, 1994 (2) SCC 392 , laying down as under: "A reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not like to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars." 7. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars." 7. Learned counsel for the applicant further placed reliance on a judgment of this Court in the case of Vijayalakshmivs. R.Vaiyanaperumal and two others, 2002-2-L.W.634, to contend that mere vague allegation that the plaintiff conspired with others cannot be said to be cause of action, which may result in suit being decreed against the applicant. 8. This application is opposed by the learned counsel for the plaintiff / non applicant, by referring to paragraph nos. 8, 11(iii), 16, 20 and 23, to contend, that there is specific cause of action disclosed against the applicant / defendant no.2 and the pleadings proved by evidence, therefore, it cannot be said that the plaint does not disclose any cause of action against the applicant / defendant no.2. 9. In order to determine whether the plaint deserves to be rejected, this Court has to take averments made in the plaint to be true and the defence raised by the defendants cannot be take, into consideration. If the pleadings, referred to above, are read in view of settled law, this Court finds merit in the contention raised by the learned counsel for the applicant / defendant no.2. 10. In para-8 of the plaint, on which reliance was placed, there are absolutely no allegations against the applicant / defendant no.2. Similarly para-11(iii) of the plaint also does not disclose any cause of action against the applicant / defendant no.2. It is only in para-16 of the plaint that it has been alleged against defendant nos. 1 and 2 to have misused their position. 11. The filing of complaint, prima facie, cannot be said to be an act of defamation to maintain the suit, specially when allegations read in totality, in para-16 of the plaint also, the grievance of the plaintiff is against defendant no.3. The allegations are also with regard to publication of news item, with which the applicant / defendant no.2 has no concern. The allegation in substance cannot be taken to be collusion without other material facts. Nor it will be possible to lead any evidence, as no evidence beyond pleadings can be looked into. 12. The allegations are also with regard to publication of news item, with which the applicant / defendant no.2 has no concern. The allegation in substance cannot be taken to be collusion without other material facts. Nor it will be possible to lead any evidence, as no evidence beyond pleadings can be looked into. 12. This Court in the case of Vijayalakshmivs. R.Vaiyanaperumal and two others, (supra) was pleased to uphold the order of rejection of plaint, where the allegation was merely of collusion without any other facts, being alleged against the party. 13. In view of the position explained above, this Court finds that the plaint against the applicant / defendant no.2 deserves to be rejected for non disclosure of cause of action, as the plaintiff has failed to disclose bundle of facts, which if taken with law applicable, can give plaintiff the right or liberty against defendants. 14. The Honble Supreme Court in the case of JanakDulari Devi vs. Kapildeo Rai, 2011 (5) Recent Apex Judgmentes 462 (SC), has been pleased to lay down that no evidence beyond pleading is permissible, therefore, it will not be open to the plaintiff / non applicant to lead evidence against defendant no.2 in absence of pleadings, showing bundle of facts. 15. Consequently, it can safely be held that the plaint does not disclose any cause of action. The plaint against applicant / defendant no.2 is, accordingly, ordered to be rejected. No costs.