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2014 DIGILAW 2195 (MAD)

G. Gopalaswamy v. N. Raghavulu Naidu

2014-07-18

S.TAMILVANAN

body2014
ORDER 1. The Original Application in O.A.No.680 of 2013 is filed by the plaintiffs under Order XIV Rule 8 of the High Court Original Side Rules read with Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking interim injunction restraining the respondent, his men, agents, servants or subordinates from publishing or causing any act, lowering the image of the applicants in the eye of the public and thereby causing harm to the reputation of the applicants, pending disposal of the suit. 2. The suit has been filed, seeking permanent injunction restraining the respondent/defendant, his men or agents from making any publication or sending letters to various authorities or causing any act concerning the applicants/plaintiffs in any manner, lowering the image or reputation of the applicants and also for damages for the loss of reputation and goodwill caused by the respondent/defendant, estimated at Rs. 50 lakhs. In the application, seeking interim injunction, as stated in the application, restraining the respondent till the disposal of the suit. 3. The applicants/plaintiffs have stated that the respondent/defendant has addressed improper letters to various authorities, defaming the reputation of the applicants/plaintiffs, hence, legal notice was issued by the applicants/plaintiffs to the respondent/defendant on 18.04.2013, however, the respondent/defendant sent only a false and misleading reply on 21.05.2013 and sending again various letters to the authorities, defaming the reputation of the applicants, which necessitated in filing the suit, seeking permanent injunction, as stated above and also damages for causing loss of reputation and goodwill to the applicants/plaintiffs and seeking interim injunction by way of filing the application. 4. Mr. V. Raghavachari, learned counsel appearing for the applicants submitted that the applicants and the respondent are of same community and the applicants are Director and Chairman respectively of one Prashanth Hospitals at Chennai and that the second applicant is also a trustee of one Maruthi Educational Trust, which runs Maruthi Matriculation School. The first applicant is a surgical Gastroenterologist and a Laparoscopic surgeon, having completed his fellowship from the Royal College of Glasgow and the second applicant is a renowned Obstetrician and Gynecologist and also a specialist in reproductive medicine and laparoscopic surgery, got life time achievement award from Gynecology and Obstetric society for advanced learning in collaboration with Harvard University. 5. During 1984, the respondent/defendant had approached the applicants with a proposal to start a school. 5. During 1984, the respondent/defendant had approached the applicants with a proposal to start a school. The respondent in this regard, took part in an auction held by Tamil Nadu Housing Board and succeeded in getting land being allotted. However, only the first applicant and his friend one Raghava Rao paid the entire sale consideration and on account of the close relationship of the first plaintiff with the defendant, the respondent/defendant was given share in the property and a partnership deed was also drawn up and a primary school by name Maruthi Vidhyala was started and on 25.04.1996, the Maruthi Educational Trust was created. Ms. Shyamala Devi, wife of the respondent was made Correspondent of the Maruthi Matriculation School at the request of the respondent, however, the respondent, his wife Ms. Shyamala Devi had filed a suit in C.S.No.407 of 2006 before this Court and obtained an order of interim injunction against the Trustees from interfering with her functioning as Correspondent and the respondent as Principal of the School. Later on, the said suit was transferred to the City Civil Court, Chennai and numbered as O.S.No.6894 of 2010. Subsequently, the said suit was re-transferred to this Court. The suit in C.S.No.196 of 2011 was filed by the trustees against Ms. Shyamala Devi and Others, seeking to frame a scheme under Section 92 of the Code of Civil Procedure. 6. Mr. V. Raghavachari, learned counsel appearing for the applicants further submitted that the respondent, being a Law Graduate, subsequently enrolled himself as an Advocate, using his credentials as an Advocate and a senior citizen and he used to approach various Government authorities and also sending false and frivolous complaints against the applicants to the authorities, with a mala fide intention, so as to cause loss to the reputation of the applicants, which goes to the extent of attacking the moral turpitude of the applicants in running their hospital, hence, applicants/plaintiffs have filed the suit, seeking interim injunction against the respondent not to cause any defamatory statement against the applicant, till the disposal of the suit. 7. Per contra, Mr. V. Prakash, learned Senior counsel appearing for the respondent submitted that there was no petition or letter addressed by the respondent with any defamatory statement against the applicants. 7. Per contra, Mr. V. Prakash, learned Senior counsel appearing for the respondent submitted that there was no petition or letter addressed by the respondent with any defamatory statement against the applicants. The learned Senior counsel further argued that approaching the authorities and sending representations against the applicants, cannot be construed as a defamatory statement, if it is based on Truth and shall not be injuncted and in this regard, the Senior counsel drew the attention of this Court to Article 19 (1) (a) of the Constitution of India, which guarantees Freedom of speech and expression. 8. In order to substantiate the arguments, both the learned counsel drew the attention of this Court to the typed set of papers filed on the side of both the parties to the application. It is seen that the respondent has addressed a letter to the District Collector of Chennai on 28.02.2013, wherein he has stated that Dr. Geetha Haripriya, the second respondent herein has constructed Prashanth Multispeciality Hospital at No.76 and 77, Harrington Road, Chetpet, Chennai - 600 031, violating CMDA and Corporation Rules. The respondent has stated further that it was an illegal and deviated construction, apart from an unauthorised floor has been constructed. In the said representation to the District Collector, Chennai, the respondent has stated in page number 4 as follows: “As per ref 11 : Adjacent and close to Prashanth Hospitals, there are about 10000 students studying in the schools will be affected by unhygienic disposal of the wastages from the hospitals and also a risk of their lives from the dangerous buildings.” 9. It is further seen that in an another letter, dated 31.07.2013 addressed by the respondent to the District Collector, Chennai, in page number 6, he has stated as follows: “It is shocking news to read a Nakeeran Magazine, dt. 28.05.2007 that Dr. It is further seen that in an another letter, dated 31.07.2013 addressed by the respondent to the District Collector, Chennai, in page number 6, he has stated as follows: “It is shocking news to read a Nakeeran Magazine, dt. 28.05.2007 that Dr. Geetha Haripriya has adopting illegal methods of treatment in her Fertility centres by bringing Pachaiyappas College students repeatedly to her Fertility centre by luring a small amounts to them and by spoiling the future generation of India for getting hefty amounts in indulging immoral activities with students.” Further, he has stated in page number 7 thus: “The Authorities bear to keep in mind the utmost important in safety of school young children of about 10000 who are studying in adjacent and neighbouring schools, including Teachers, more women patients, pregnant women, mothers with small babies in arms, women who are undergoing treatment in IVF methods, etc., including 2000 out-patients who are daily coming to these Fertility centres, as per affidavits filed by Dr. Geetha Haripriya in the Hon’ble High Court, Madras.” 10. Mr. V. Prakash, learned Senior counsel for the respondent submitted that while exercising jurisdiction, this Court need not interfere with any genuine complaint sent by the respondent/defendant, based on facts to the authorities. It was further argued by the senior counsel that the alleged defamatory matters were published in Nakeeran Tamil magazine and therefore, applicants are not entitled to seek interim injunction restraining the respondent/defendant from stating the same in the complaints addressed to the authorities. However, Mr. V. Raghavachari, counsel for the applicants submitted that the respondent/defendant had given various complaints with mala fide intention to the authorities, who are not empowered to deal with the representation given by him. Though the respondent is an Advocate, knowing the procedure that if there is any unauthorised construction, complaint could be placed before CMDA or the Corporation of Chennai, he had sent the complaints to the District Collector, Chennai and other authorities with by way of sending representation containing defamatory and false allegations against the applicants with mala fide intention, which are beyond the purview of the Fundamental Rights, guaranteed under Article 19 (1) (a) of the Constitution, relating to Freedom of speech and expression and according to him, it is a deliberate attempt of the respondent, which is liable for legal action. 11. In Fr. 11. In Fr. Jegath Gaspar Raj v. Editor, Kumudham Reporter (Magazine), (2012) 6 CTC 771 , this Court has held as follows: “15. The particular para of the same is purely relating to his personal life and the same cannot be allowed to be published in such a reckless manner without his consent. Thus, applying the principles laid down by our Supreme Court and High Court, this Court is inclined to grant interim injunction in limited manner.” 12. In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 1481, the Hon’ble Supreme Court has analysed the concept of privacy, as enunciated by Courts of England and United States on Freedom of speech and expression. The Hon’ble Apex Court is of the view that the principles enunciated in various judgments referred to are applicable to public figures, who often play a crucial role in regulating an orderly society. The freedom of speech and expression includes publication and making representation to the authorities, however, malicious and defamatory statements in the name of freedom of expression or ventilating grievance by way of representation could not be justified. 13. In the popular case New York Times v. United States, (1971) 403 U.S. 713, it was held that the State or its officials have a heavy burden or showing justification for the imposition of restraint. Hence, responsibility is required even in respecting reputation of others. 14. In this case, it is not in dispute that the applicants and the respondent herein had close acquaintance earlier and subsequently, there was misunderstanding arose between them, which has created ill-will and enmity. Admittedly, cases are pending between the applicants and the respondent before various Courts. In the aforesaid circumstances, any representation containing defamatory allegation by the respondent against the applicants could not be construed as bona fide statement in the interest of the public. It cannot be disputed that if there is any truth in the statement, that would be an exception and that would come only under Article 19 (1) (a) of the Constitution. 15. It cannot be disputed that if there is any truth in the statement, that would be an exception and that would come only under Article 19 (1) (a) of the Constitution. 15. In Kartar Singh v. State of Punjab, AIR 1965 SC 541, referring the decision rendered by Queens Bench, the dicta of the Judges in Seymour v. Buttenworth and R. v. Sir R.Carden, 1879 (5) QBD, BHAGWATI, J, who delivered the Judgment has observed in paragraph-12 thus: “These slogans were certainly defamatory of the Transport Minister and the Chief Minister of the Punjab Government but the redress of that grievance was personal to these individuals and the State authorities could not take the cudgels on their behalf by having recourse to Section 9 of the Act, unless and until the defamation of these individuals was prejudicial to the security of the State or the maintenance of public order. So far as these individuals were concerned, they did not take any notice of these vulgar abuses and appeared to have considered the whole thing as beneath their notice. Their conduct in this behalf was consistent with the best traditions of democracy. “Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men, which they know from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time”. 16. Learned counsel appearing for the applicants also relied on the decision in Gulf Oil (Great Britain) Ltd. v. Page and Others, 1987 (3) WLR 166, wherein LORD PARKER and LORD RALPH GIBSON have held as follows: “It is true that there is no wrong done if what is published is true provided that it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination and publication is to injure the plaintiff. If, however, there is both combination and purpose of dominant purpose to injure there is wrong done. When a plaintiff sues in conspiracy there is, therefore, a potential wrong even if it is admitted, as it is in the present case, that the publication is true and thus, that there is no question of a cause of action in defamation. If, however, there is both combination and purpose of dominant purpose to injure there is wrong done. When a plaintiff sues in conspiracy there is, therefore, a potential wrong even if it is admitted, as it is in the present case, that the publication is true and thus, that there is no question of a cause of action in defamation. In such a case, the Court can, and in any view should proceed on the same principles as it would in the case of any other tort.” 17. The Hon’ble Supreme Court in Indian Oil Corpn. v. NEPC India Ltd., AIR 2006 SC 2780 : (2006) 6 SCC 736 : (2007) 1 MLJ (Crl) 473, while dealing with the scope ofSections 482 and 250 of the Code of Criminal Procedure, 1973, has held that a complaint may be quashed, since it was a clear abuse of the process of the Court and the criminal proceeding was found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. Referring various earlier decisions rendered by the Hon’ble Apex Court, the principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, to quash complaint and criminal proceeding have been stated and reiterated. 18. Though the present case is a civil suit, the analogy is the same. Accordingly, no one can abuse the process of Court or take any action with mala fides or malice for wrecking vengeance or to cause harm, when the allegations are absurd and inherently improbable. In the aforesaid decision, the Hon’ble Supreme Court has held thus: “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v.State of U.P, (2002) 2 SCC 636, this Court observed: (SCC p.643, para 8) It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in a civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant.” 19. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi, AIR 2003 SC 2545 : (2003) 5 SCC 257 , the Hon’ble Supreme court held as follows: “32. Likewise the ingredients of Section 420 of the Indian Penal Code are also not made out. There is no reason as to why the appellants must be made to undergo the agony of a criminal trial as has been held by this Court in the case of G. Sagar Suri and Another v. State of U.P. and Others (2000) 2 SCC 636 . In this this Court held that Jurisdiction under Section 482 of the Code has to be exercised with great care. In this this Court held that Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter.” 39. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise of representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed.” (See also Vir Prakash Sharma v. Anil Kumar Agarwal and Another (2007) 7 SCC 373 ).” 20. In FRANCIS BENNION’S STATUTORY INTERPRETATION, Section 263, it is stated as follows: “A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The Court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention.” 21. Similarly in MAXWELL in THE INTERPRETATION OF STATUTES (12th Edn), it reads thus: “The strict construction of penal statutes seems to manifest itself in four ways : in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.” 22. In CRAIES AND STATUTE LAW (7th En, At p.529), it is said that penal statutes must be construct strictly. In CRAIES AND STATUTE LAW (7th En, At p.529), it is said that penal statutes must be construct strictly. At page 530 of the said treatise, referring to U.S. v. Wiltberger, (1820) 2 Wheat (US) 76, it has been observed as follows: “The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plaint principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment.” 23. In Tuck v. Priester, (1887) 19 QBD 629, which is followed in London and County Commercial Properties Investments v. Attn Gen., (1953) 1 WLR 312, it has been held as follows: “We must be very careful in construing that section, because it imposed a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms, they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive.” 24. BLACKBURN, J in Wills v. Thorp, (1875) LR 10 QB 383, has held thus: “When the Legislature imposes a penalty, the words imposing it must be clear and distinct.” 25. The aforesaid decisions rendered by the Hon’ble Supreme Court, the Courts of United States of America and the Queens Bench of England would show that while interpreting the law, it would be mandatory on the part of the Courts to consider the legislative intention or legal policy. In this regard, Part III of the Constitution, which guarantees Fundamental Rights would be relevant. 26. It cannot be disputed that Freedom of speech and expression is one of the important Fundamental Rights, guaranteed under Article 19 (1) (a) of the Constitution. In this regard, Part III of the Constitution, which guarantees Fundamental Rights would be relevant. 26. It cannot be disputed that Freedom of speech and expression is one of the important Fundamental Rights, guaranteed under Article 19 (1) (a) of the Constitution. However, it is not an absolute right to say anything either by words or any form against law. The reputation of any individual or Institution is on par with assets. No one has right to cause loss to the reputation of the other with mala fide intention unreasonably. 27. In the instant case, it is an admitted fact that the applicants/plaintiffs and the respondent are known to each other for a long time and they engaged in promoting joint venture by starting educational institutions and other social activities. Subsequently, misunderstanding was developed between the parties, which resulted in filing the suits and writ petitions. Both the parties are entitled to seek legal remedy by way of filing suit or writ petition. If it is legal, they can also approach the concerned authorities, however, no one has right in indulging in spoiling the reputation of the other, with mala fide intention. 28. It is seen that the respondent, a practising lawyer has sent various letters to the authorities. As contended by the learned counsel appearing for the applicants, the respondent has addressed a letter to the District Collector, Chennai, stating that the second respondent, Dr. Geetha Haripriya is adopting illegal methods of treatments in her Fertility centre by bringing Pachaiyappas College students repeatedly to her Fertility centre by luring a small amounts to them, whereby spoiling the future generation of India for getting hefty amounts in indulging immoral activities with students. Mr. V. Prakash, learned Senior counsel submitted that the said statement was given based on an Article published in a Tamil magazine, which cannot be a legal defence in favour of the respondent/defendant 29. When there are various civil disputes between the applicants and the respondent, making the aforesaid averments in the complaint to the District Collector could be legally presumed as an attempt with mala fide intention by the respondent in tarnishing the image of their applicants and the Institution. 30. In fact, it is seen that the respondent had addressed the said letter, dated 31.07.2013 about the multi-storeyed building constructed by the applicants for their Hospital at Harrington Road, Chennai. 30. In fact, it is seen that the respondent had addressed the said letter, dated 31.07.2013 about the multi-storeyed building constructed by the applicants for their Hospital at Harrington Road, Chennai. The respondent has sated that it was an unauthorised floor construction and no completion certificate was obtained. Being a practising lawyer, the Court has to presume that the respondent the knowledge that the competent authority is only Chennai Metropolitan Development Authority (CMDA). If his property is nearby the said building, alleged to be an unauthorised construction, he is entitled to file independent suit, seeking appropriate relief before the Court having jurisdiction. However, sending representation, raising some other allegation, defamatory in nature in the said representation to the District Collector, could be legally presumed as representation with mala fide intention. In the said paragraph available at page number 11 of the typed set of papers filed by the applicants, the respondent has stated that the second respondent a lady Doctor is adopting illegal method of treatment in her Fertility centre and he has also stated that the students of Pachaiyappas college are repeatedly being taken to her Fertility centre and spoiling the future generation of India, as if he is having public interest, in spite of the fact that there is a civil dispute pending between himself and the applicants. He has also added that applicants are collecting hefty amounts in indulging immoral activities with students. 31. It is seen that various petitions were sent by the respondent against the applicants, for which copies are available in the typed sets of papers filed by the applicants as well as the respondent, which would show that the intention of the respondent is not bona fide, but due to personal animosity, he has attempted to harass the applicants, which is not legally permissible. In fact, such type of activity of any Advocate will tarnish the image of his noble profession and if he has any legal grievance, he can legally agitate for redressal before the appropriate forum. However, by-passing appropriate legal methods, sending complaints alleging various unconnected unsustainable averments, defamatory in nature to the authorities, so as to cause loss to the reputation of the applicants cannot be justified, as freedom of speech and expression. 32. However, by-passing appropriate legal methods, sending complaints alleging various unconnected unsustainable averments, defamatory in nature to the authorities, so as to cause loss to the reputation of the applicants cannot be justified, as freedom of speech and expression. 32. It has been made clear that there is a prima facie case made out and balance of convenience is also in favour of the applicants and if interim injunction is not granted, it would certainly cause irreparable injury or loss to the reputation of the applicants. 33. On the aforesaid facts and circumstances, this Court is of the view that the applicants are entitled to get interim injunction against the respondent, in view of the defamatory statement made by them. Accordingly, interim injunction is granted restraining the respondent, his men, agents, servants or subordinates from publishing or causing any act, lowering the image of the applicants in the eye of the public and thereby causing harm to the reputation of the applicants, till the disposal of the suit. 34. In the result, this Original Application is ordered as prayed for till the disposal of the suit. However, there is no order as to costs. Ordered accordingly.